Visalia Retail, LP v. City of Visalia

228 Cal. Rptr. 3d 351, 20 Cal. App. 5th 1
CourtCalifornia Court of Appeal, 5th District
DecidedJanuary 4, 2018
DocketF074118
StatusPublished
Cited by11 cases

This text of 228 Cal. Rptr. 3d 351 (Visalia Retail, LP v. City of Visalia) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Visalia Retail, LP v. City of Visalia, 228 Cal. Rptr. 3d 351, 20 Cal. App. 5th 1 (Cal. Ct. App. 2018).

Opinion

POOCHIGIAN, Acting P.J.

*354*5This appeal involves a challenge to an update of the City of Visalia's (Visalia) general plan. Included in the update is a land use policy affecting areas designated "Neighborhood Commercial." Under the policy, no tenant in a Neighborhood Commercial area may be larger than 40,000 square feet in size.

Appellant claims Visalia violated the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ; "CEQA") by failing to analyze the potential for the land use policy to cause a phenomenon called urban decay. "CEQA does not define urban decay" but some have defined it as "visible symptoms of physical deterioration that invite vandalism, loitering, and graffiti that is caused by a downward spiral of business closures and multiple long term vacancies." ( Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685, 204 Cal.Rptr.3d 464 ( Joshua Tree ).)

Appellant, likely prompted by concerns as to how the general plan update would adversely impact property it owns, challenged the proposed land use policy. Appellant submitted to Visalia the opinion of an experienced local commercial real estate agent that the land use policy would cause anchor vacancies and/or lower-traffic anchors, which would reduce rental income landlords use for maintenance and improvements, which would "creat[e] a downward spiral of physical deterioration."

The propriety of the tenant size cap was discussed by city staff and councilmembers at various points in the process of drafting and approving the general plan update. However, the environmental impact report (EIR) itself did not analyze the potential for urban decay. Appellant contends this rendered the EIR fatally flawed. We disagree.

CEQA is concerned with significant effects on the environment (§ 21100, subd. (b) ), not with purely economic impacts. (see Cal. Code Regs., tit. 14, § 15382 )1 The fact that a policy may hurt certain businesses is not an effect covered by CEQA, unless that impact on business causes a significant effect on the environment. (See Joshua Tree , supra , 1 Cal.App.5th at p. 685, 204 Cal.Rptr.3d 464, quoting South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1614, 127 Cal.Rptr.3d 636 ( Dana Point ).) Here, appellant failed to produce sufficient evidence from which a fair argument can be made that the land use policy at issue may cause a significant effect on the environment , rather than purely economic effects.

*6As explained below, appellant's expert supported his opinion largely with conjecture as to whether the land use policy would cause urban decay. Moreover, even if the land use policy would undoubtedly cause some adverse economic consequences, appellant's expert offered little to show that "the magnitude of this effect" ( Joshua Tree , supra , 1 Cal.App.5th at p. 691, 204 Cal.Rptr.3d 464, original italics) may lead to a substantial impact on the environment. That is, "even if a handful of properties were to remain permanently vacant, the result would not necessarily be the kind of change the physical environment that implicates CEQA." ( Ibid . )

*355We also reject appellant's claims that the amended general plan is internally inconsistent and that Visalia violated a notice requirement of the Planning and Zoning Law ( Gov. Code, § 65000 et seq. ) We affirm the judgment.

FACTS

Every city in California must adopt "a comprehensive, long-term general plan for the physical development of the ... city ...." ( Gov. Code, § 65300.) "A general plan provides a " 'charter for future development' " and sets forth a city or county's fundamental policy decisions about such development. [Citation.]" ( San Francisco Tomorrow v. City and County of San Francisco (2014) 228 Cal.App.4th 1239, 1247, 176 Cal.Rptr.3d 430.) The general plan may be amended in the public interest. ( Gov. Code, § 65358.)

In April 2010, Visalia filed a "Notice of Preparation" (see Guidelines, § 15082) indicating it was preparing to update its general plan, and that an EIR was required. Though specific proposals on how to update the general plan had "not yet been determined," the general plan update would "likely address" various topics including land use and city design.

The notice identified a "next step" in the process, which would involve a group called the General Plan Update Review Committee (GPURC). The GPURC would participate in the development of potential "land use and transportation alternatives" and prepare a "Preferred Plan." The Preferred Plan would be presented to Visalia's "decision-makers," and the general plan update would be drafted based on the Preferred Plan.

On January 22, 2013, the Visalia City Council met with the planning commission to review the progress made by the GPURC. City council members and planning commissioners "provided preliminary feedback to staff for additional analysis." Staff prepared "white papers" addressing various decision points raised by the councilmembers' feedback.

*7One of the white papers concerned the land use policy applicable to properties classified as "Neighborhood Commercial." The white paper referenced a draft land use policy called LU-P-66,2 which read in pertinent part:

"Shopping centers in Neighborhood Commercial areas should have the following:

• Anchored by a grocery store or similar business offering fresh produce, poultry, fish and meat;
• Include smaller in-line stores of less than 10,000 square feet;
• Total size of 5 to 12 acres as shown on the Land Use Diagram; and
• Integrated with surrounding neighborhood uses in terms of design, with negative impacts minimized.
"Standards for Neighborhood Commercial development also should require design measures that create a walkable environment and require local street and pedestrian connections.

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Cite This Page — Counsel Stack

Bluebook (online)
228 Cal. Rptr. 3d 351, 20 Cal. App. 5th 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visalia-retail-lp-v-city-of-visalia-calctapp5d-2018.