Meeting Date: Agenda Item No: Subject: Location: Applicant: Walmart, Inc. City of Rohnert Park PLANNING COMMISSION STAFF REPORT January 24,2019 l0.l File No. PL2009-02SR Walmart Site Plan and Architectural Review and File No. PL2010-08SR Sign Program - Consideration of a One-Year Extension of the Approvals for the Site Plan and Architectural Review and Sign Program for the Walmart Expansion project 4625 Redwood Drive (APN 045-055-004) RECOMMENDATION: Adopt resolution 1. Approving a one-year extension of the approvals for Site Plan and Architectural Review and Sign Program for the Walmart Expansion project located at 4625 Redwood Drive. BACKGROUND On January 21,2009, Walmart Stores, Inc. ("Walmart") submitted an application for a 40,260 square foot expansion of the existing Walmart Store located at 4624 Redwood Drive, Rohnert Park, CA 94928 ("Project"). The Project would enable Walmart to add a 24-hour grocery component to its existing store. The City prepared an environmental impact report ("EIR") to analyze the Project's potential environmental impacts. The Planning Commission declined to certify the EIR on April 22,2010. Walmart appealed. On July 29,2010, the City Council granted Walmart's appeal, approved the Project, certified the EIR, adopted Findings of Fact and a Statement of Oveniding Considerations, and imposed a Mitigation and Monitoring Plan. On August 31,2010, Sierra Club filed the Sierra Club Action (captioned Sierua Club v. City of Rohnert Park, Sonoma Superior Court Case No. SCV 248112). On June 9, 2011, the trial court granted Sierra Club's Petition for Writ of Mandate and ordered the City to vacate the resolutions approving the Project. The City rescinded the resolutions approving the Project on June 12,2012, then partially revised the EIR. Page I of5
Transcript
Meeting Date:
Agenda Item No:
Subject:
Location:
Applicant: Walmart, Inc.
City of Rohnert ParkPLANNING COMMISSION STAFF REPORT
January 24,2019
l0.l
File No. PL2009-02SR Walmart Site Plan and Architectural Review andFile No. PL2010-08SR Sign Program - Consideration of a One-YearExtension of the Approvals for the Site Plan and Architectural Review andSign Program for the Walmart Expansion project
4625 Redwood Drive (APN 045-055-004)
RECOMMENDATION: Adopt resolution
1. Approving a one-year extension of the approvals for Site Plan and Architectural Reviewand Sign Program for the Walmart Expansion project located at 4625 Redwood Drive.
BACKGROUND
On January 21,2009, Walmart Stores, Inc. ("Walmart") submitted an application for a 40,260square foot expansion of the existing Walmart Store located at 4624 Redwood Drive, RohnertPark, CA 94928 ("Project"). The Project would enable Walmart to add a 24-hour grocerycomponent to its existing store. The City prepared an environmental impact report ("EIR") toanalyze the Project's potential environmental impacts. The Planning Commission declined tocertify the EIR on April 22,2010. Walmart appealed. On July 29,2010, the City Council grantedWalmart's appeal, approved the Project, certified the EIR, adopted Findings of Fact and a
Statement of Oveniding Considerations, and imposed a Mitigation and Monitoring Plan.
On August 31,2010, Sierra Club filed the Sierra Club Action (captioned Sierua Club v. City ofRohnert Park, Sonoma Superior Court Case No. SCV 248112). On June 9, 2011, the trial courtgranted Sierra Club's Petition for Writ of Mandate and ordered the City to vacate the resolutionsapproving the Project. The City rescinded the resolutions approving the Project on June 12,2012,then partially revised the EIR.
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On August I4,20I4, the Planning Commission certified the revised EIR, adopted a Statement ofOverriding Considerations and Mitigation Monitoring and Reporting Program, and approved theSite Plan and Architectural Review and Sign Program applications (collectively, the"Entitlements"). On January 13, 2015, the City Council considered appeals of the PlanningCommission's August 14,2014 decisions, denied the appeals, certified the revised EIR, adopted a
Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program, andapproved the Entitlements.
On March 20,2015, Nancy Atwell, Elizabeth Craven, and Matthew Weinstein filed the AtwellAction (captioned Atwell v. City of Rohnert Park, Sonoma Superior Court Case No. SCV256S91)to challenge the Project's consistency with the General Plan. The Atwell Action was finallyresolved in the City's favor on November 26,2018 when the Court of Appeal issued the publishedopinion attached hereto as Exhibit 1.
On April 75, 2016, the City hled a Motion to Discharge the Peremptory Writ of Mandatepreviously issued in the Siena Club Action. The Sierra Club Action was finally resolved in20l7when Sierra Club voluntarily dismissed its appeal of the Superior Court's Order granting the City'sMotion to Discharge the Peremptory Writ of Mandate.
Meantime, on January 28,2016, the Planning Commission approved a one-year extension of theEntitlements. The Planning Commission approved a second one-year extension of theEntitlements on January 12, 2017, and a third one-year extension of the Entitlements on January11,2018. The Entitlements are currently scheduled to expire on January 13,201,9. The PlanningCommission approved the prior extensions because it determined that the pending litigationeffectively precluded Walmart from commencing construction of the Project.
ANALYSIS
Walmart applied for a fourth one-year time extension for the Entitlements on December 21,2018.The application was received prior to the January 13,2019 expiration date and this matter is beingbrought before the Planning Commission for its consideration. There have been no changes in theapproved plans for the Project. No modifications have been made in the chapter in the ZoningOrdinance regarding signs that would result in any changes in the approved Sign Program.
Pursuant to Zoning Ordinance Section 17.25.035, regarding Lapse of Approval/Renewal for SitePlan and Architectural Review approvals:
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A. Site Plan and Architectural Review approval shall lapse one year after the date of finalapproval or at an altemative date specified at the time of approval, unless:1. A building permit has been issued and construction has diligently commenced; or2. A Certificate of Occupancy has been issued; or3. The use is established; or4. The Site Plan and Architectural Review approval is renewed in accordance with
subsection B below.5. The project is a residential development that does not require the approval of a tentative
subdivision map, or otherwise not vested through a development agreement with thecity, then the approval shall expire after a twenty-four-month period, unless extendedfor special circumstances by the city council.
B. A Site Plan and Architectural Review approval may be renewed for an additional periodof one year, provided that prior to the expiration date, an application for renewal is hledwith the Planning Commission. The Planning Commission shall not deny the renewalrequest without first holding a Public Hearing and making findings supporting the reasonfor denial. If the Planning Commission denies the renewal request, the applicant shallhave ten calendar days to appeal the decision to the City Council as set forth in Chapter17.25 Artlcle XII.
Pursuant to ZoningOrdinance Section 17.27.040(H), regarding expiration of Sign Permit and SignProgram approvals:
H. Approval Period, Expiration and Time Extensions. A sign permit or sign programapproval will expire one year from the date of issuance unless the sign or at least one signin an approved sign program has been installed in accordance with the conditions ofapproval. If the sign permit or sign program is for a building or shopping center underconstruction, the one year approval period will commence on the date of issuance of thefirst certificate ofoccupancy for the project.
1. Prior to expiration, the applicant may apply for an extension of up to one additionalyear. The extension shall be reviewed by the review authority that acted on the originalrequest.
2. The permit or approval will be null and void if the zoning ordinance changessignificantly prior to the installation of the sign to a point that given the new regulationsin the zoning ordinance such a sign would not be permitted.
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The City of Rohnert Park does not have a litigation tolling ordinance which would allow the projectEntitlements to remain in place until litigation is resolved. This necessitates the applicant applyingannually for extension of the Entitlements per the Rohnert Park Municipal Code which allows forone-year extensions of the approvals. As explained in the attached letter from Walmart, Walmartdid not exercise the project approvals while the Atwell and Sierra Club Actions were pending dueto uncertainty in the outcome of the litigation, the considerable expense associated with startingpermits to vest the Entitlements, and the likelihood that the petitioners would seek a restrainingorder prohibiting Walmart from commencing construction during the pendency of the litigation.(Exhibit 2.)
Staff recommends that the Planning Commission approve Walmart's request for a fourth and finalone-year extension of the approvals for the Site Plan and Architectural Review and the SignProgram. The City has defended the Project in the Atwell and Sierra Club Actions at Walmart'sexpense since 2010. Moreover, the Atwell and Sierra Club Actions have effectively precludedWalmart from commencing construction of the Project during that period. Finally, the timebetween November 26,2018 - when the Atwell Action was finally resolved - and the expirationof the permits on January 13,2079, was too short for Walmart to pull permits to begin constructionof the Project. With the Atwell and Sierra Club Actions now resolved, this is the final extensionrequest that staffcan support.
ENVIRONMENTAL REVIEW
As noted above, on January 73,2015, the City Council certified the EIR and adopted a Statementof Overriding Considerations and Mitigation Monitoring and Reporting Program for theEntitlements. No further environmental review is necessary for the extension of the Entitlements.
PUBLIC NOTIF'ICATI AND INFORMATION
A public hearing notice denoting the time, date, and location of this hearing was publishedin TheCommunity Voice on January 11,2019. Property owners within 500 feet of the Project site andinterested parties requesting notification were also mailed notices, and the notice was postedpursuant to State law.
RECO ACTIONS
Based on the analysis above and the findings listed in the attached resolutions, staff recommendsthat the Planning Commission take the following actions:
L Approve Resolution No. 2019-05 approving a one-year extension of the approvals for SitePlan and Architectural Review and a Sign Program for the Walmart Expansion projectlocated at 4625 Redwood Drive.
ATTACHMENTS:
A. Resolution No. 2019-05
Page I of5
EXHIBITS:
l. Published Court of Appeal Opinion inAtwell v. City of Rohnert Park2. Letter from Walmart
APPROV
J , Planning Manager Date
Page 2 of5
Page 1 of 2
PLANNING COMMISSION RESOLUTION NO. 2019-05
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA APPROVING A ONE-YEAR EXTENSION OF THE
APPROVALS OF THE SITE PLAN AND ARCHITECTURAL REVIEW AND SIGN PROGRAM FOR THE WALMART LOCATED AT 4625 REDWOOD DRIVE (APN 045-
055-004)
WHEREAS, the City processed applications for the Site Plan and Architectural Review (Planning Application No. PL2009-02SR) and Sign Program (Planning Application No. PL2010-08SR) for a 40,260 square foot expansion of the existing Walmart Store located at 4624 Redwood Drive, Rohnert Park, CA 94928 (“Project”) in the time and manner prescribed by State and local law. The Project would enable Walmart, Inc. to add a 24-hour grocery component to its existing store; and
WHEREAS, on January 13, 2015, the City Council of the City of Rohnert Park certified the Environmental Impact Report, adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program, and approved the applications for Site Plan and Architectural Review and Sign Program for the Project; and
WHEREAS, Walmart, Inc. has submitted an application for a one-year time extension of the approvals for Site Plan and Architectural Review and Sign Program for the Project, on the grounds that litigation had effectively precluded Walmart, Inc. from moving forward with the Project; and
WHEREAS, the litigation that Walmart claims precluded it from moving forward with the Project was resolved on or about November 26, 2018; and
WHEREAS, on January 24, 2019, the Planning Commission held a public meeting at which time interested persons had an opportunity to testify either in support or opposition to the proposed time extension for the Site Plan and Architectural Review and Sign Program; and
WHEREAS, the Planning Commission, using their independent judgment, reviewed the time extension request and all evidence in the record related to the Project including the staff report, public testimony, and all evidence presented both orally and in writing; and
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Rohnert Park, California, hereby makes the following findings:
A. The Planning Commission, at a public hearing on January 24, 2019, reviewedWalmart, Inc.’s request for a one-year extension of the approvals of the Site Planand Architectural Review and Sign Program for the Project, and all evidence in therecord related to the Project including the staff report, public testimony, and allevidence presented both orally and in writing.
Attachment A
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B. The Planning Commission finds that a one-year extension of the approvals of theSite Plan and Architectural Review and Sign Program for the Project is consistentwith the approved plans for the Walmart expansion and with the Rohnert ParkMunicipal Code Sections 17.25.035(B) and 17.27.030(H)(1). Such entitlementsare hereby extended by one year and shall expire on January 13, 2020.
C. The Planning Commission finds that a one-year extension of the approvals of theSite Plan and Architectural Review and Sign Program does not necessitate furtherenvironmental review of the Project under CEQA, because the City Council hascertified the environmental impact report (SCH# 2009052008) for the Project.
NOW THEREFORE BE IT FURTHER RESOLVED, that the Planning Commission does hereby approve Walmart, Inc.’s request for a one-year extension of the approvals of the Site Plan and Architectural Review and Sign Program for the Walmart Store expansion located at 4625 Redwood Drive (APN 045-055-004) subject to the following conditions:
1. Walmart, Inc. shall comply with all applicable sections of the City of Rohnert ParkMunicipal Code.
2. Walmart, Inc. shall secure all necessary permits and clearances from the Rohnert ParkBuilding Department prior to commencement of construction.
DULY AND REGULARLY ADOPTED on this 24th day of January, 2019 by the Cityof Rohnert Park Planning Commission by the following vote:
27 Cal.App.5th 692Court of Appeal, First District, Division 1, California.
Nancy ATWELL et al., Plaintiffs and Appellants,v.
CITY OF ROHNERT PARK,Defendant and Respondent;
Wal-Mart Stores, Inc., Real Party in Interest.
A151896, A153011|
Filed 9/18/2018|
As Modified 9/26/2018|
Certified for Partial Publication. *
SynopsisBackground: Objectors brought declaratory judgmentaction and petition for writ of mandate against city,challenging city council's approval of expansion ofexisting store. The Superior Court, Sonoma County,No. SCV256891, Rene A. Chouteau, J., denied petition.Objectors appealed.
Holdings: The Court of Appeal, Margulies, J., held that:
[1] action constituted same cause of action as asserted inprior action, supporting finding that res judicata barredinstant action;
[2] objectors were in privity with plaintiffs in prior action;and
[3] objectors' claims did not simply raise question of law,also supporting finding that res judicata barred instantaction.
Affirmed.
Procedural Posture(s): On Appeal; Complaint forDeclaratory Relief; Review of Administrative Decision.
West Headnotes (14)
[1] Appeal and ErrorJudgment on the pleadings
PleadingJudgment on Pleadings
A motion for judgment on the pleadings isequivalent to a demurrer and is governed bythe same de novo standard of review.
Cases that cite this headnote
[2] JudgmentNature and requisites of former recovery
as bar in general
The doctrine of res judicata bars a partyand persons in privity with that party fromrelitigating a claim following a final judgmenton the merits of the claim.
Cases that cite this headnote
[3] JudgmentNature and requisites of former recovery
as bar in general
The prerequisite elements for applying thedoctrine of res judicata to either an entirecause of action or one or more issues are thesame: (1) a claim or issue raised in the presentaction is identical to a claim or issue litigatedin a prior proceeding; (2) the prior proceedingresulted in a final judgment on the merits;and (3) the party against whom the doctrine isbeing asserted was a party or in privity with aparty to the prior proceedings.
Cases that cite this headnote
[4] JudgmentNature and elements of bar or estoppel
by former adjudication
JudgmentMatters which might have been litigated
Res judicata not only bars issues actuallylitigated but also bars issues that could have
been litigated, as long as the later-raised issuesconstitute the same cause of action involved inthe prior proceeding.
Cases that cite this headnote
[5] JudgmentWhat constitutes identical causes
Objectors' instant action, challenging citycouncil's approval of extension of existingstore and seeking declaration of rights underterms of city's general plan, constituted samecause of action as asserted in prior action foralleged violations of state planning and zoninglaw, supporting finding that res judicatabarred instant action, even though city councilhad adopted new resolutions regarding storeexpansion project in time between prioraction and instant action, where prioraction challenged same expansion project asbeing inconsistent with general plan, instantproject also asserted noncompliance withgeneral plan, and project proposal remainedunchanged.
Cases that cite this headnote
[6] JudgmentWhat constitutes identical causes
Whether two actions constitute the same causeof action, as could result in finding that resjudicata bars second of the actions, turns onwhether they are based on the same primaryright.
Cases that cite this headnote
[7] JudgmentWhat constitutes identical causes
A plaintiff's primary right, in determiningwhether two actions are based on sameprimary right and thus whether res judicatabars second action, is the right to be freefrom a particular injury, regardless of thelegal theory on which liability for the injury isbased.
Cases that cite this headnote
[8] JudgmentTheory of action or recovery
JudgmentNature and Extent of Relief Sought or
Granted
For purposes of res judicata, if two actionsinvolve the same injury to the plaintiff and thesame wrong by the defendant then the sameprimary right is at stake even if in the secondsuit the plaintiff pleads different theories ofrecovery, seeks different forms of relief and/oradds new facts supporting recovery.
Cases that cite this headnote
[9] JudgmentWhat constitutes privity in general
Objectors, who brought instant petition forwrit of mandate and declaratory judgment onbehalf of citizens, taxpayers, property owners,and electors of city to challenge city council'sapproval of store expansion project, were inprivity with plaintiffs in prior litigation, ascould support finding that instant petition wasbarred by res judicata, where both petitionssought to bring claims on behalf of the publicagainst a public entity, and objectors did notallege any harm apart from harm incurred bythe community.
Cases that cite this headnote
[10] JudgmentWhat constitutes privity in general
The concept of privity of parties, indetermining whether a successive action isbarred by res judicata, refers to a mutualor successive relationship to the same rightsof property, or to such an identification ininterest of one person with another as torepresent the same legal rights.
As applied to questions of preclusion,privity requires the sharing of an identityor community of interest, with adequaterepresentation of that interest in the first suit,and circumstances such that the nonpartyshould reasonably have expected to be boundby the first suit.
Cases that cite this headnote
[12] JudgmentWhat constitutes privity in general
A nonparty alleged to be in privity with aparty in a successive action, as could supportfinding that successive action is barred by resjudicata, must have an interest so similar tothe party’s interest that the party acted as thenonparty’s virtual representative in the firstaction.
Cases that cite this headnote
[13] JudgmentWhat constitutes privity in general
Privity, as used in the context of res judicataor collateral estoppel, does not embracerelationships between persons or entities, butrather it deals with a person's relationship tothe subject matter of the litigation.
Cases that cite this headnote
[14] JudgmentScope and Extent of Estoppel in General
Objectors' claims against city, in petition forwrit of mandate and declaratory judgmentchallenging city council's approval of storeexpansion project, did not simply raisequestion of law, supporting finding thatobjectors' action was barred by res judicatabased on prior action which challenged sameproject, where objectors sought interpretationof an ordinance as it applied to projectapproval.
Witkin Library Reference: 7 Witkin, Cal.Procedure (5th ed. 2008) Judgment, § 409[Judgment for Defendant as Bar; Theories
for Determining Whether Cause of Action IsDifferent; Different Primary Right.]
Cases that cite this headnote
**250 Sonoma County Superior Court, Rene A.Chouteau, Judge (Sonoma County Super. Ct. No.SCV256891)
Attorneys and Law Firms
Shore, McKinley & Conger, LLP, Brett S. Jolley,Stockton, for Plaintiffs and Appellants.
Burke, Williams & Sorensen, LLP, Michelle MarchettaKenyon and Nicholas J. Muscolino, Oakland, forDefendant and Respondent City of Rohnert Park.
Morgan, Lewis & Bockius, LLP, Rollin B. Chippey andDeborah E. Quick, San Francisco, for Real Party inInterest and Respondent Wal-Mart Stores, Inc.
Opinion
Margulies, J.
*694 Appellants Nancy Atwell, Elizabeth Craven, andMatthew Weinstein appeal the denial of their petitionfor writ of mandate against the City of Rohnert Park(City). In 2010 and 2015, the city council approvedand reapproved an expansion for an existing Wal-Martstore, which would include a full grocery component.Appellants contend the city council’s second approval wasinconsistent with its General Plan and land use policyLU-7. The trial court concluded appellants' petition wasbarred by res judicata because a prior petition challengingthe city council’s initial approval also asserted a claimcontesting General Plan consistency. The trial courtfurther held appellants' petition was barred by the statuteof limitations and *695 substantial evidence supportedthe city council’s determination the expansion compliedwith the General Plan. We affirm the judgment.
I. BACKGROUND
A. The Initial Project and EIRThe City’s General Plan includes land use policyLU-7 (hereafter Policy LU-7) which declares the City’s
obligation to: “Encourage new neighborhood commercialfacilities and supermarkets to be located to maximizeaccessibility to all residential areas. [¶] The intent isto ensure that convenient shopping facilities such assupermarkets and drugstores are located close to wherepeople live and facilitate access to these on foot oron bicycles. Also, because Rohnert Park’s residentialpopulation can support only a limited number ofsupermarkets, this policy will encourage dispersion ofsupermarkets rather than their clustering in a fewlocations.” (Italics omitted.)
In 2009, Wal-Mart Stores, Inc. (Wal-Mart) filed anapplication with the City, proposing to expand its existingstore located in the northwest corner of town. Theexpansion would add approximately 36,000 square feet tothe existing Wal-Mart “big box” discount store for theaddition of a 24-hour grocery/supermarket (Project).
In 2010, the City prepared a draft environmental impactreport (EIR). That EIR evaluated whether the Projectwas consistent with the General Plan. With regard toPolicy LU-7, the draft EIR concluded the Project was“consistent.” It stated: “The proposed project wouldexpand the existing Walmart store to add space for foodsales. There are no existing grocery stores within a 1-mileradius of the project site; therefore, the proposed projectwould be consistent with the commentary languageconcerning dispersal of grocery uses throughout theCity. Furthermore, the proposed project would installbicycle storage facilities and enhance pedestrian facilitiesto improve accessibility for these **251 modes oftransportation. Finally, the 24-hour operation of theexpanded store would provide local residents with theopportunity to shop at times when existing stores arenot open.... These characteristics are consistent with theobjective of maximizing accessibility to supermarkets.”
In response, the City received public comments assertingthe Project was not consistent with the General Plan orPolicy LU-7. These letters argued the Project would closeexisting neighborhood-serving grocery stores, is located ina large commercial area, and would contribute to an over-concentrated area around the U.S. Highway 101/RohnertPark Expressway interchange.
The City addressed these comments in its final EIR.It concluded the concerns lacked merit and did notdetract from the Project’s consistency with *696 Policy
LU-7. Specifically, it noted the Project would be “well-positioned” to serve residents in northern Rohnert Park aswell as residents in Cotati and southwest Santa Rosa. TheCity further noted drive times to the Project are shorterthan or similar to the time needed to reach other existingsupermarkets.
The planning commission subsequently consideredthe EIR. Following a public hearing, the planningcommission declined to approve the original EIR or theProject. The planning commission instead concluded theEIR and Project did not comply with the General Plan andwas, in part, inconsistent with Policy LU-7.
Wal-Mart subsequently appealed the planningcommission’s decision to not certify the EIR, arguingthe EIR satisfied the requirements of the CaliforniaEnvironmental Quality Act (CEQA; Pub. ResourcesCode, § 21000 et seq.) and complied with Policy LU-7.Following a public hearing at which Policy LU-7 wasdiscussed, the city council granted the appeal andspecifically found “The Project would be consistentwith all applicable General Plan goals and policies....”The resolution approving the site plan concluded: “TheProject, as proposed and with recommended conditionsand mitigation measures, will be consistent with theGeneral Plan and Zoning Ordinance.”
B. The Sierra Club ActionSierra Club and Sonoma County Conservation Action(SCCA) filed a petition for writ of mandate in SonomaCounty Superior Court challenging the city council’s EIRand Project approvals. (Sierra Club v. City of RohnertPark (2012, No. SCV248112) (Sierra Club action).)Appellants were not named parties in that action. Thepetition asserted three causes of action for violating
CEQA, the state Planning and Zoning Law ( Gov.Code, § 65000 et seq.), and the Rohnert Park MunicipalCode. The second cause of action for violations of thestate Planning and Zoning Law alleged: “The Projectis inconsistent and incompatible with applicable goals,policies and objectives of the Rohnert Park General Plan,including but not limited to ... Policy LU-7....” TheSierra Club action requested in part a peremptory writof mandate commanding the City to set aside its EIRcertification and Project approval.
Although raised in its petition, Sierra Club and SCCAdid not pursue the claim that the Project conflicted withPolicy LU-7. The trial court subsequently granted thepetition and ordered the resolutions approving the Projectbe vacated and the Project be remanded for additionalenvironmental review. Specifically, the court ordered“the EIR must address each and every traffic mitigationmeasure proposed for the Project and reanalyze thecumulative noise impacts....”
**252 *697 C. Revised EIR and SubsequentAdministrative AppealsThe City vacated the Project approvals and prepared arevised EIR. However, the revised EIR did not alter theoriginal EIR’s analysis of the Project’s consistency withthe General Plan.
In 2014, the planning commission held a public hearingon the revised EIR. Appellants objected to the Projectduring this hearing, alleging the Project “is in a sectionof town that has very few residents in it, and ... that’sclearly at odds with the LU-7 plan. The original economicplan says that it would draw customers from a wide area.”In response, the City asserted the Project “is consistentwith City of Rohnert Park’s General Plan. [¶] Even now,one and two neighborhoods coming on line in the westside of Rohnert Park are neighborhoods that will needgrocery stores and services. There are other businessesoperating at an expanded time frame, where those workersdo need grocery stores and services.” The City also tookthe position that the issue of urban decay was not partof what the court found inadequate about the EIR andthus is not before the planning commission. The planningcommission subsequently certified the revised EIR andreapproved the Project.
Appellants then appealed the planning commission’sdecision. At the public hearing on the appeal, appellantsagain objected to the Project and challenged itsconsistency with the General Plan. Wal-Mart opposedthe appeal and argued the Project complied with PolicyLU-7 for three principal reasons: (1) the Project islocated where there are no competing supermarketswithin a mile, thereby meeting the goal of dispersingsupermarkets; (2) the supercenter will be open 24 hours aday, helping augment options for local customers; and (3)the City, in the intervening years, has approved residentialconstruction in the vicinity of Project. The City staffreport also opined the Project was consistent with Policy
LU-7, noting: “If anything, the Project is more consistentwith the objectives of Policy LU-7 today than it waswhen it was considered in 2010 because of increasedresidential development in the vicinity of the Project.” Thecity council denied the appeal and concluded the Projectwould comply with the City’s General Plan and zoningordinance.
D. Trial Court ProceedingsIn 2015, appellants filed a petition in the superior courtchallenging the Project’s consistency with Policy LU-7 andseeking a writ of mandate ordering the City to vacate theProject approvals. After merits briefing was completed,the City filed a motion for judgment on the pleadingsasserting appellants' claims were barred by the doctrine ofres judicata.
*698 The trial court issued a tentative order denyingthe petition and granting the City’s motion for judgmenton the pleadings. The tentative order concluded thepetition was barred by res judicata and the statuteof limitations. The order further concluded substantialevidence supported the city council’s determination ofGeneral Plan consistency. Appellants did not contest thetentative order, and judgment was entered in favor of theCity. Appellants timely appealed.
II. DISCUSSION
A. Motion for Judgment on the Pleadings[1] “ ‘A judgment on the pleadings in favor of the
defendant is appropriate when the complaint fails to allegefacts sufficient to state a cause of action. [Citation.] Amotion for judgment on the pleadings is equivalent to ademurrer and is governed by the same de novo standard ofreview.’ **253 [Citation.] ‘All properly pleaded, materialfacts are deemed true, but not contentions, deductions, or
conclusions of fact or law....’ ” ( People ex rel. Harrisv. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772,777, 174 Cal.Rptr.3d 626, 329 P.3d 180.)
In granting the City’s motion for judgment on thepleadings, the trial court concluded appellants' petitionwas barred by res judicata and the statute of limitations.For the reasons we explain below, we conclude resjudicata bars appellants' petition. Accordingly, we need
not address whether it also is barred by the statute oflimitations.
1. Res Judicata[2] [3] [4] “The doctrine of res judicata bars a party
and persons in privity with that party from relitigatinga claim following a final judgment on the merits of theclaim. ‘ “ ‘The prerequisite elements for applying thedoctrine to either an entire cause of action or one ormore issues are the same: (1) A claim or issue raised inthe present action is identical to a claim or issue litigatedin a prior proceeding; (2) the prior proceeding resultedin a final judgment on the merits; and (3) the partyagainst whom the doctrine is being asserted was a partyor in privity with a party to the prior proceedings.’ ” ’” (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499,1510, 173 Cal.Rptr.3d 66 (Roberson).) Res judicata notonly bars issues actually litigated but also bars issues thatcould have been litigated, as long as the later-raised issuesconstitute the same cause of action involved in the prior
proceeding. ( Federation of Hillside & Canyon Assns. v.City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202, 24
Cal.Rptr.3d 543 ( Federation of Hillside).)
*699 The City claims appellants' petition is barred byres judicata because consistency with the General Planwas challenged in the Sierra Club action, the Sierra Clubaction resulted in a final judgment, and appellants arein privity with Sierra Club and SCCA. While appellantsagree the Sierra Club action resulted in a final judgment,they contend this petition raises distinct claims and theyare not in privity with Sierra Club and SCCA.
a. Identical Cause of Action
[5] The second claim in the Sierra Club action allegedviolations of the state Planning and Zoning Law. Itasserted the Project “is inconsistent and incompatible withapplicable goals, policies and objectives of the RohnertPark General Plan,” including Policy LU-7. Similarly,appellants' petition contends the Project violates the statePlanning and Zoning Law because it conflicts with theRohnert Park General Plan. The petition alleges “theProject directly contravenes Policy LU-7” and, due tosuch inconsistency, “the City acted in an arbitrary andcapricious manner and committed a prejudicial abuse ofdiscretion in approving the Project....” The petition also
seeks a declaration of rights under the terms of the GeneralPlan. Accordingly, the two petitions appear to raise thesame issue regarding the Project’s compliance with theCity’s General Plan.
Appellants assert their petition raises a distinct issuebecause the question of whether the Project is consistentwith the General Plan was not actually litigated in theSierra Club action. But as noted above, res judicata may
bar issues that “could have been litigated.” ( Federationof Hillside, supra, 126 Cal.App.4th at p. 1202, 24Cal.Rptr.3d 543, italics added.) Appellants, however,contend their petition could not have been litigated in theSierra Club action because it is based on the city council’s2015 resolutions, which were approved **254 followingthe Sierra Club action and contain new findings of GeneralPlan consistency.
[6] [7] [8] Whether appellants' challenge to the citycouncil’s 2015 resolutions and the prior challenge to thecity council’s 2010 resolutions constitute the same causeof action turns on whether “they are based on the same
‘primary right.’ ” ( Federation of Hillside, supra, 126Cal.App.4th at p. 1202, 24 Cal.Rptr.3d 543.) That is,“[t]he plaintiff’s primary right is the right to be freefrom a particular injury, regardless of the legal theory
on which liability for the injury is based.” ( Ibid.) “‘[I]f two actions involve the same injury to the plaintiffand the same wrong by the defendant then the sameprimary right is at stake even if in the second suitthe plaintiff pleads different theories of recovery, seeksdifferent forms of relief and/or adds new facts supporting
recovery.’ ” ( Tensor Group v. City of Glendale (1993) 14Cal.App.4th 154, 160, 17 Cal.Rptr.2d 639.)
In arguing the city council’s 2015 resolutions constitute
a new wrong, appellants rely on *700 Planning &Conservation League v. Castaic Lake Water Agency (2010)
180 Cal.App.4th 210, 103 Cal.Rptr.3d 124 ( CastaicLake). In that case, a nonprofit organization challenged
an EIR concerning a water transfer. ( Id. at p. 219,103 Cal.Rptr.3d 124.) The appellate court directed theissuance of a writ vacating the certification of the EIR as
legally inadequate. ( Id. at p. 221, 103 Cal.Rptr.3d 124.)After a second EIR was certified in 2004, another petition
was filed challenging the revised EIR. ( Id. at pp. 218–
219, 224, 103 Cal.Rptr.3d 124.) The court concluded thesubsequent petition involved a different cause of actionbecause the second EIR was a “factually distinct attempt[ ]
to satisfy CEQA’s mandates.” ( Id. at p. 228, 103Cal.Rptr.3d 124.) Specifically, the court concluded theinitial action “and the underlying actions involve distinctepisodes of purported noncompliance regarding ‘the samegeneral subject matter’ [citation], namely, the public’sstatutory right to an adequate EIR concerning the [water]
transfer [citations].” ( Ibid.)
While Castaic Lake concluded the second petitioncould proceed due to “ ‘changed conditions and new factswhich were not in existence at the time the action was
filed’ ” ( Castaic Lake, supra, 180 Cal.App.4th at p. 227,103 Cal.Rptr.3d 124), other courts have found subsequentpetitions barred because they arise from materially similar
facts. For example, in Ballona Wetlands Land Trustv. City of Los Angeles (2011) 201 Cal.App.4th 455, 134
Cal.Rptr.3d 194 ( Ballona Wetlands), objectors filedpetitions for writs of mandate challenging Los Angeles’scertification of an EIR and project approvals for a certain
real estate development. ( Id. at p. 462, 134 Cal.Rptr.3d194.) After the trial court granted the petitions in part,Los Angeles vacated its certification of the EIR and
project approvals. ( Id. at p. 463, 134 Cal.Rptr.3d194.) Los Angeles then revised certain sections of the
EIR, recertified it, and reapproved the project. ( Id.at p. 464, 134 Cal.Rptr.3d 194.) The objectors againchallenged the EIR based both on the revisions and on
new grounds. ( Ibid.) The court concluded the objectorswere barred from raising new challenges to the revisedEIR: “After considering the petitioner’s challenges toan EIR or other agency action and rendering a finaljudgment and peremptory writ of mandate, a trial courtevaluating a return to the writ may not consider any newlyasserted challenges arising from the same material factsin existence at the time of the judgment. To do so would
undermine the finality of the judgment.” ( Id. at p. 480,134 Cal.Rptr.3d 194.)
**255 Similarly, in Federation of Hillside, supra,126 Cal.App.4th 1180, 24 Cal.Rptr.3d 543, Los Angelesprepared a general plan framework and EIR, which
cited and relied in large part on a transportation
improvement mitigation plan. ( Id. at p. 1190, 24Cal.Rptr.3d 543.) Following an initial petition challengingthe general plan framework and EIR, Los Angelesamended the EIR to add responses to comments onthe transportation improvement mitigation plan, madenew findings regarding mitigation measures, adopted astatement of overriding considerations, and readopted
the general plan framework. ( Id. at pp. 1191–1192, 24Cal.Rptr.3d 543.) A second petition was filed challengingthe adoption of the general plan framework, CEQAfindings, and statement of overriding considerations.
( Federation of Hillside, at p. 1193, 24 Cal.Rptr.3d 543.)On appeal, the court noted certain current findings by*701 Los Angeles were substantially identical to its prior
findings. ( Id. at p. 1202, 24 Cal.Rptr.3d 543.) DespiteLos Angeles’s reliance on information that postdated itsinitial CEQA findings, the court found “the material factshave not changed and ... the two proceedings involvethe same primary right and the same cause of action”because the reapproval of the general plan framework wasprimarily based on information and analysis contained in
the original EIR. ( Federation of Hillside, at p. 1204, 24Cal.Rptr.3d 543.)
We do not find these cases inconsistent. Both Castaic
Lake and Ballona Wetlands cite Federation of
Hillside. And neither disputes the holding in Federationof Hillside—namely, that res judicata barred thepetitioners' challenges in the second proceeding because,in part, “the material facts had not changed and theissues asserted in the later proceeding could have been
asserted in the prior proceeding.” ( Ballona Wetlands,supra, 201 Cal.App.4th at p. 480, 134 Cal.Rptr.3d 194;
see Castaic Lake, supra, 180 Cal.App.4th at p. 229, 103
Cal.Rptr.3d 124 [distinguishing Federation of Hillsideon the basis that it “challenged the same EIR and the
material facts had not changed”].) Ballona Wetlandslikewise concluded the materials facts had not changed
such that res judicata was appropriate. ( Id. at p.
480, 134 Cal.Rptr.3d 194.) Castaic Lake, however,found material facts had changed and allowed the second
petition to proceed. ( Id. at p. 228, 103 Cal.Rptr.3d 124.)
Accordingly, the key question is whether the city council’s2015 resolutions adopted new findings such that theyconstituted a new injury to appellants and a new wrongby the City. The city council’s 2010 resolutions found,in relevant part, “The Project, as proposed and withrecommended conditions and mitigation measures, will beconsistent with the General Plan and Zoning Ordinance.”Likewise, the 2015 resolutions found, in relevant part,“The Project, as proposed and with recommendedconditions and mitigation measures, will be consistentwith the General Plan and Zoning Ordinance.” Thereis no dispute the Project proposal remains unchanged.And both the 2010 and 2015 resolutions found theProject “will be consistent with the General Plan andZoning Ordinance.” Accordingly, the city council’s 2015resolutions raised a new issue only if the “recommendedconditions and mitigation measures” included new orrevised conditions or measures that are at issue inappellants' petition.
In the Sierra Club action, the trial court reversedthe EIR because it was deficient in that it (1) failedto address certain proposed mitigation measures inconnection with traffic impacts; and (2) failed to supportits cumulative noise impact analysis with substantialevidence, consider mitigation measures, or adopt astatement of overriding consideration. The revised EIR**256 addresses these two issues through revisions
to (1) the executive summary matrix row regardingnoise; (2) the section on noise, including thresholdsof *702 significance, project impacts, and mitigationmeasures; (3) the section on transportation; (4) thesection on cumulative effects of noise; and (5) revisionsto the cumulative noise analysis appendix. The revisedEIR also added two new appendices on transportationdemand management and store information (operations,policies, transportation demand management measures).No other revisions were made. The revised EIR doesnot mention Policy LU-7, and appellants' petition doesnot challenge the traffic or noise analyses. Rather, thepetition focuses on the Project’s location as incompatiblewith the goal of maximizing accessibility to residentialareas. Consequently, even though the city council’s 2015resolutions are “new” and revisions were made to the EIRand its discussion of mitigation measures, these revisionsare unrelated to Policy LU-7.
Moreover, all of appellants' arguments regarding PolicyLU-7 are identical to those raised and argued before thecity council in 2010. Concerns regarding the Project’scompliance with the General Plan and Policy LU-7 wereraised, discussed, and evaluated in connection with theoriginal EIR and Project approval. Nothing in the recordsuggests appellants' current petition materially differsfrom the General Plan consistency claim raised in theSierra Club action or the issues raised in public hearingson the original EIR and Project approvals. Accordingly,appellants' petition is not based on changed material factsand raises the same claims as raised in the Sierra Clubaction.
b. Privity
[9] Appellants next argue no privity exists between them,Sierra Club and SCCA because they (1) were not partiesto the Sierra Club litigation, (2) are unaffiliated with theSierra Club or SCCA, (3) did not coordinate with SierraClub or SCCA on the prior litigation, and (4) seek redressfor both public and private harms. In response, the Citycontends appellants are in privity with Sierra Club andSCCA because both petitions seek to bring claims onbehalf of the public against a public entity.
[10] [11] [12] [13] “ ‘ “The concept of privity ...refers ‘to a mutual or successive relationship to the samerights of property, or to such an identification in interestof one person with another as to represent the samelegal rights....’ ” ’ ” (Roberson, supra, 226 Cal.App.4that p. 1511, 173 Cal.Rptr.3d 66, italics omitted.) “Overtime, courts have embraced a somewhat broader, morepractical concept of privity. ‘ “[T]o maintain the stabilityof judgments, insure expeditious trials,” prevent vexatiouslitigation, and “to serve the ends of justice,” courts areexpanding the concept of privity beyond the classicaldefinition to relationships “ ‘sufficiently close to affordapplication of the principle of preclusion.’ ” ’ [Citation.]For example, more recently our Supreme Court explainedthe basic *703 tenets of privity in broader terms: ‘Asapplied to questions of preclusion, privity requires thesharing of “an identity or community of interest,” with“adequate representation” of that interest in the firstsuit, and circumstances such that the nonparty “shouldreasonably have expected to be bound” by the first suit.[Citation.] A nonparty alleged to be in privity must havean interest so similar to the party’s interest that the party
acted as the nonparty’s “ ‘ “virtual representative” ’ ”in the first action.’ ” (Castillo v. Glenair, Inc. (2018) 23Cal.App.5th 262, 276–277, 232 Cal.Rptr.3d 844.) “Putanother way, privity, ‘ “as used in the context of resjudicata **257 or collateral estoppel, does not embracerelationships between persons or entities, but rather itdeals with a person’s relationship to the subject matterof the litigation.” ’ ” (Id. at p. 277, 232 Cal.Rptr.3d 844,italics omitted.)
Here, both appellants' petition and the prior petitionallege claims as, and on behalf of, citizens, taxpayers,property owners, and electors of Rohnert Park. Whileappellants argue their petition sets forth a private harm“ ‘because they will be directly and substantially affectedby the adverse community impacts that may result fromthe Project,’ ” appellants fail to distinguish this harm fromthat alleged in the Sierra Club action. Nor do we see anymeaningful distinction.
A similar argument was asserted and rejected in Roberson,supra, 226 Cal.App.4th 1499, 173 Cal.Rptr.3d 66. In thatmatter, the City of Rialto approved construction of a largecommercial retail center. (Id. at p. 1502, 173 Cal.Rptr.3d66.) Rialto Citizens for Responsible Growth (RialtoCitizens) petitioned to invalidate the project approvalsbased in part on a defect in the city council hearingnotice. (Id. at p. 1505, 173 Cal.Rptr.3d 66.) The trial courtinvalidated the approvals, which was then reversed onappeal. (Id. at p. 1506, 173 Cal.Rptr.3d 66.) Robersonsubsequently filed a writ petition contesting the defectin the city council hearing notice. (Id. at p. 1504, 173Cal.Rptr.3d 66.) Roberson argued he was not in privitywith Rialto Citizens because “he brought his petition ‘inhis own interest,’ while Rialto Citizens challenged theproject approvals on public interest grounds.” (Id. at p.1512, 173 Cal.Rptr.3d 66.) However, Roberson’s petitionfocused on “harm [to] the community” rather than harmto himself. (Id. at pp. 1512–1513, 173 Cal.Rptr.3d 66.)Accordingly, the court concluded “Roberson ‘ “ ‘ “hadan identity or community of interest with, and adequaterepresentation by” ’ ” ’ Rialto Citizens on his defectivenotice claim, both during the July 2008 city councilhearings and in the Rialto Citizens action.” (Id. at p.1513, 173 Cal.Rptr.3d 66.) Accordingly, when an allegedharm impacts the public rather than a specific entity,the privity analysis must focus on the “community ofinterest” rather than the relationship between the parties.
To this end, we find Association of Irritated Residents v.
Department of Conservation (2017) 11 Cal.App.5th 1202,
218 Cal.Rptr.3d 517 ( Assn. of Irritated Residents), thecase relied upon by appellants, distinguishable. While thatcase applied a more rigid interpretation of privity, it reliedupon cases *704 involving specific harm to an entity,
not a public harm. 1 ( Id. at p. 1232, 218 Cal.Rptr.3d
517, citing Rodgers v. Sargent Controls & Aerospace(2006) 136 Cal.App.4th 82, 86, 38 Cal.Rptr.3d 528 [actionfor personal injuries caused by asbestos exposure] &
Lucido v. Superior Court (1990) 51 Cal.3d 335, 339,272 Cal.Rptr. 767, 795 P.2d 1223 [prosecution for indecentexposure].)
This case raises issues of harm to the community—namely, the detrimental impact to neighborhoodsupermarkets caused by having one located in a largecommercial area. Despite their claims of personal harm,appellants do not allege any such harm apart from thatincurred by the community. Likewise, Sierra Club andSCCA brought their petition on behalf of its memberswho are part of the community. **258 Within thisframework, appellants' and Sierra Club’s and SCCA’s “ ‘“relationship to the subject matter of the litigation” ’ ” isidentical. (Castillo v. Glenair, Inc., supra, 23 Cal.App.5that p. 277, 232 Cal.Rptr.3d 844, italics omitted.)
Nor have appellants asserted their interest was notadequately represented in the Sierra Club litigation.
(See, e.g., Assn. of Irritated Residents, supra, 11Cal.App.5th at p. 1233, 218 Cal.Rptr.3d 517 [presumedcommon interests “effectively abdicated by lack of vigorin representation” because Sierra Club failed to timely
appeal]; Castaic Lake, supra, 180 Cal.App.4th at p.231, 103 Cal.Rptr.3d 124 [statement that environmentalentity lacked funds to challenge the EIR “display[ed] an‘abdication of the role of public agent’ [citation] and anabandonment of ‘its intention to represent the interestsof the general public’ ”].) Barring such evidence, we mustassume Sierra Club and SCCA diligently litigated theirpetition and made an informed decision not to pursue theGeneral Plan consistency argument. (City of Santa Mariav. Adam (2012) 211 Cal.App.4th 266, 286, 149 Cal.Rptr.3d491 [“The most fundamental rule of appellate review isthat a judgment is presumed correct, all intendments andpresumptions are indulged in its favor, and ambiguitiesare resolved in favor of affirmance.”].) Accordingly, we
find appellants in privity with the petitioners in the SierraClub action.
2. Public Policy Exception[14] Finally, appellants argue this court should consider
their challenge because it raises a question of lawregarding statutory interpretation. Even if the elements ofres judicata are met, the California Supreme Court hasheld *705 “ ‘when the issue is a question of law ratherthan of fact, the prior determination is not conclusiveeither if injustice would result or if the public interest
requires that relitigation not be foreclosed.’ ” ( City ofSacramento v. State of California (1990) 50 Cal.3d 51, 64,266 Cal.Rptr. 139, 785 P.2d 522.) But in this instance,appellants are not asserting a question of law regardingstatutory interpretation. Rather, they seek interpretationof an ordinance as it applies to the Project approval.Such a claim inherently requires the court to considerthe facts and circumstances surrounding the Project. (See
Citizens for Open Government v. City of Lodi (2012) 205Cal.App.4th 296, 327, 140 Cal.Rptr.3d 459.)
Accordingly, appellants' petition is barred by res judicata.Even assuming appellants' petition is not barred by res
judicata, we cannot conclude no reasonable person couldhave found the Project consistent with the General Plan
and Policy LU-7. 2
**259 B. Project Consistency with Policy LU-7 **
III. DISPOSITION
The judgment is affirmed. Defendant City of RohnertPark may recover its costs on appeal. (Cal. Rules of Court,rule 8.278(a)(1), (2), (5).)
Footnotes* After the court’s review of a request under California Rules of Court, rule 8.1120, and good cause established under rule
8.1105, it is hereby ordered that the opinion should be published in the Official Reports. Pursuant to California Rules ofCourt, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B.
1 In addition, the petitioners in Assn. of Irritated Residents submitted declarations indicating they were unaware of theprior action and had no reasonable expectation of being bound to that action, and Sierra Club failed to appeal the judgment
due to a “ ‘clerical error.’ ” ( Assn. of Irritated Residents, supra, 11 Cal.App.5th at pp. 1232–1233, 218 Cal.Rptr.3d517.) The record does not suggest such evidence exists in this matter.
2 The parties also dispute whether appellants' petition is barred by the 90-day statute of limitations in Government Code
section 65009. In arguing the 90-day limitations period bars appellants' petition, the City relies on Honig v. San
Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 25 Cal.Rptr.3d 649, Van de Kamps Coalition v. Board of
Trustees of Los Angeles Community College Dist. (2012) 206 Cal.App.4th 1036, 142 Cal.Rptr.3d 276, and City ofChula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 29 Cal.Rptr.2d 89. However, none of these cases are
analogous because they involve initial approvals upon which later actions were based. (See Honig, at p. 528, 25
Cal.Rptr.3d 649 [obtained variance and then obtained building permit consistent with that variance]; Van de Kamps,at pp. 1047–1048, 142 Cal.Rptr.3d 276 [resolution approving project triggered statute of limitations rather than date
lease was executed]; Chula Vista, at pp. 1720–1721, 29 Cal.Rptr.2d 89 [same].) Here, however, the initial city councilapprovals were vacated by this court and the City was required to reapprove the EIR and Project. Accordingly, we
question whether those initial approvals could be considered a “final adjudicatory administrative decision.” ( County of
Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1327, 118 Cal.Rptr.3d 915, italics omitted.) However, we neednot resolve this dispute in light of our other holdings herein.
SheppardMullin Sheppard Mullin Richter & Hampton LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111-4109 415.434.9100 main 415.434.3947 main fax www.sheppardmullin.com
December 21,2018
VIA E-MASL AND U.S. MAIL
City of Rohnert Park Development Services Department Attn: Suzie Azevedo 130 Avram Avenue Rohnert Park, California 94928 sazevedo@rpcitv. orq
Re: Request for Extension of Entitlements for Walmart Expansion Project
On behalf of Walmart, Inc., I am writing to request a further one-year extension of the approved entitlements for the Walmart Expansion Project located at 4625 Redwood Drive in Rohnert Park. Enclosed is a completed Zoning and Land Use Application for the requested extension. The City is authorized to deduct the application fee from Walmart’s deposit account.
I. Entitlement History for the Walmart Expansion Project
As background, the following summarizes the project’s entitlement history. On January 13, 2015, the City Council re-approved the project’s entitlements, consisting of a Site Plan & Architectural Review/Environmental Impact Report (PL2009-02SR/EIR) and Sign Program (PL2010-09SR). Both entitlements were valid for an initial period of one year. Due to ongoing litigation against the project, the Planning Commission subsequently granted three one-year extensions of the entitlements on January 28, 2016 (Reso. No. 2016-03), January 12, 2017 (Reso. No. 2017-03), and January 11, 2018 (Reso. No. 2018-01). With these extensions, the current entitlement expiration date is January 13, 2019.
II. The City’s Authority to Grant the Entitlement Extension
Rohnert Park Municipal Code sections 17.25.035 and 17.27.040(H) authorize the City to grant one-year extensions of the Site Plan & Architectural Review and Sign Program, respectively, provided that an application for extension is submitted before the entitlement expiration date. This application is timely submitted before the January 13, 2019 expiration date.
The City Attorney has confirmed that developers may apply for multiple entitlement extensions and that other projects in the City have received multiple extensions.
Pursuant to these authorities, Walmart respectfully requests that the City grant a fourth (and what it expects to be final) one-year extension of the entitlements for the Walmart Expansion Project to January 13, 2020.
III. Reasons for Granting the Entitlement Extension
Walmart’s request for an entitlement extension is justified and should be granted for the following reasons.
A. The Project Entitlements were in Litigation from January 2015 through November 2018
Following the City’s January 2015 re-approval of the project, opponents continued challenging the project approvals in Sierra Club et al. v. City of Rohnert Park (Sonoma County Superior Court, Case No. 248112). In addition, in March 2015, different opponents filed a new lawsuit challenging the project approvals in Nancy Atwell et al. v. City of Rohnert Park (Sonoma County Superior Court, Case No. 256891). For almost four years thereafter, the project entitlements remained in continuous litigation before the trial court and the court of appeal. Just last month, on November 26, 2018, the court of appeal resolved the last remaining case (Atwell), when it issued its remittitur certifying that the appellate decision had become final. All litigation against the project is now believed to be finally resolved.
B. The Continuous Litigation Prevented Walmart From Permitting, Constructing, and Vesting Entitlements for the Project
Like many other developers, Walmart was not willing to assume the risk of processing and obtaining permits, paying fees, satisfying exactions, and beginning construction of the project during active litigation, which could have resulted in the project approvals being invalidated. In addition, even if Walmart had started construction, petitioners likely would have sought a temporary restraining order or preliminary injunction to stop construction pending the resolution of the litigation. If granted, a construction stay would have imposed significant costs on Walmart and the project, such as, for example, the costs of de-mobilizing contractors, canceling construction and material contacts, stabilizing and protecting the construction site, and storing materials and equipment.
C. Because the Litigation Concluded Only Recently, Walmart has not had Sufficient Time to Vest the Project Entitlements
Because the litigation against the project only concluded last month on November 26, 2018, Walmart has not yet had sufficient time to process and obtain permits, start construction, and vest the project entitlements. Walmart would need additional time to prepare and submit construction plans, complete the plan check process with the appropriate City departments, make preparations to start construction, and obtain construction permits. In addition, starting construction at this time of the year is made difficult by the winter rainy season.
D. Rohnert Park does not Provide for Litigation Tolling, so Serial Entitlement Extensions are Necessary
Precisely because litigation makes it so difficult for developers to keep project entitlements active, many California jurisdictions provide for “litigation tolling.” These
City of Rohnert Park December 21,2018 Page 3
SheppardMullin
jurisdictions have either zoning code provisions or standard conditions of approval that toll the expiration date of entitlements during pending litigation. (I.e., these jurisdictions “stop the clock” on the entitlements while litigation is ongoing, and “restart the clock” when the litigation ends.)
Rohnert Park, however, does not provide for litigation tolling. Moreover, the City imposes a short one-year lifespan on project entitlements. Under this scenario, Walmart and other developers who want to keep their project entitlements active during litigation must either (1) assume the significant risks and costs associated with proceeding in the face of litigation; or (2) apply for serial entitlement extensions until the litigation finally ends. As discussed above, the only feasible choice for Walmart was to apply for serial entitlement extensions.
E. Denying Litigation-Related Extension Requests will Embolden Opponents and Allow them to Defeat any Project Simply by Filing Litigation
Walmart understands and is sensitive to the Planning Commission’s concerns raised in previous years about granting serial entitlement extensions. In the absence of litigation tolling, however, developers like Walmart have no other option that adequately protects their interests. And given that the litigation is now concluded, Walmart anticipates that this will be its final extension request for the Walmart Expansion Project.
If the Planning Commission denies this extension request, it will also set a bad precedent for future projects. Would-be opponents will know that they can defeat any project in Rohnert Park simply by filing a lawsuit, delaying the litigation as long as possible, and running out the clock until the project entitlements expire. In effect, project opponents will be able to win a “real world” victory in any legal challenge to a development project, even when their claims have no legal merit and are sure to be rejected by the courts. This will likely embolden project opponents, discourage investment in Rohnert Park, and generate additional frivolous litigation for the City to defend.
* * * * *
For all of these reasons, Walmart respectfully requests that the City grant a further one- year extension of the entitlements to January 13, 2020.
Thank you for your consideration of this request. Walmart is proud to be a member of the Rohnert Park community and appreciates the City’s continued support and assistance with this long-planned project.
Alexander L. Merrittfor SHEPPARD MULLIN RICHTER & HAMPTON
City of Rohnert Park December 21,2018 Page 4
SheppardMullin
SMRH:488765272.1Enclosure
cc: Mary Grace Pawson, Rohnert Park, Development Services DirectorDeborah Quick, Morgan Lewis Michele Kenyon, Burke Williams Mary Kendall, Walmart
![November 27, 2018€¦ · City Council | November 27, 2018 [Option 1] Rohnert Park is built on community and family.In 2040, Rohnert Park is recognized as a safe, welcoming, and vibrant](https://static.documents.pub/doc/80x56/5fb4b58732546432782a9160/november-27-city-council-november-27-2018-option-1-rohnert-park-is-built-on.jpg)
