gt Steven A. Herurn SBN: 90462 Brett S. Iolley -- SBN: 210072 2 A California Professional Corporation 3 5757 Pacific Avenue, Suite 222 Stockton, CA 95207 4 Telephone: (209) 472-7700 5 Attorneys for Petitioner Tuolumne I obs Small Business Alliance 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF TUOLUMNE 10 11 TUOLUMNE JOBS SMALL BUSINESS Case No.: CV56309 ALLIANCE 12 Petitioner, OPENING BRIEF IN 13 SUPPORT OF PETITION FOR WRIT OF VS. MANDATE 14 CITY OF and DOES Ithrough Hearing Date: March 7, 2012 15 Time; 8:30 am. Dept.: 3 16 Respondents, 17 JAMES WALMART STORES, 18 INC., and DOES 19 Real Parties in InterestOPENING BRIEF IN SIJPPORT OF PETITION FOR WRIT OF MANDATE U.) -I3 28 IV. TABLE OF CONTENTS INTRODUCTION .. 1 FACTS "2 A. Walmart Expansion Application and Uncertified ER .. 2 B. The Initiative Petition .. 2 C. Petitioner's Mandamus Action in This Court Challenging the Initiative .. 4 STANDARD OF REVIEW .. 5 THE INITIATIVE IS INCONSISTENT WITH GENERAL PLAN AND TI-EREFORE IS VOID AB INITIO .. 6 A. Ca1ifornia's Consistency Doctrine. .. 6 B. The Initiative Creates a New Zoning District that is Incompatible and Inconsistent with the General Plan. .. 7 CONCLUSION .. 11 i OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF IVIANDATE gt I- IN) U.) r--A 43:- l--l U1 ON -J r--1 00 i----.1 28 TABLE OF AUTHORITIES Cases Baldwin V. City of Los Angeles (1999) 70 Ca1.App.4th 819 ..5 Building Industry Assn. V. City of Oceanside (1994) 27 Cal.App.4th 744 .. 10 Citizens for Planning Responsibly V. County of San Luis Obispo (2009) 176 Ca1.App.4th 357 .. 9 City of Irvine V. Irvine Citizens Against Overdeveloprnent (1994) 25 Cal.App.4th 868 ..6 City of Santa Ana V. City of Garden Grove (1979) 100 Cal.App.3d 521 ..7 deBottari V. City Council (1985) 171 Cal.App.3d 1204 ..5, 7 Lesher Communications Inc. V. City of Walnut Creek (1990) 52 Cal.3d. 531 ..10 Merritt V. City of Pleasanton (2001) 89 Cal.App.4th 1032 ..2, 8 Neighborhood Action Group V. County of Calaveras (1984) 156 Cal.App.3d 1175 .. 6 Royalty Carpet Mills Inc. V. City of Irvine (2005) 125 Ca1.App.4th 1110 ..8 Stolman V. City of Los Angeles (2003) 114 Ca1.App.4th 916 .. 5 ii GPENWG IN SUPPGRI GP PETITION FGR WRIT OF MANDATE Statutes Elections Code ?9212 .. 3 Elections Code ?9214 .. 3 Governrnent Code ?65454 .. 7 Gover11rr1entCode ?65860 .. 6 Goverr1rne11tCode ?65864 .. 4 Govemment Code ?66473.5 .. 6 Treatises Map Act Navigator: A Practical and Tactical Guide to the Subdivision Map Act, (2006) Durkee, et al, Chapter 10 .. 6 GPENING BREEF OF PETITIGN FGR WRET SF MANDATE l--i H. H. 1-K PD r--a U.) -I3 U1 r--t --J 1-K O0 r--t KO [0 l\3 r--bush to expand across California without interference. Walmart is in.creasin.> --J 00 3-1 K0 0 EN) l--establishes two subcategories of "Special Planning Residential (SP-R) and Special Planning Mixed Use EX 036. And the Land Use Element expressly identifies "Developing a Special Planning Plan Zoning District consistent with the Special Planning (SP) general plan land use designation" in which development "should require the preparation of a Specific Plan (as defined in Government Code Section 65450 et seq)" as the an implementation tool for this policy. EX 027-028. Of significance, the Compatibility Table identifies the General Plan~authorized SP, SP--R, and SP--MU zoning districts as expressly compatible with the SP General Plan Land Use description, but does not describe these zoning districts as compatible with any other General Plan land use designation. EX 038. Stated differently, because the General Plan expressly authorizes SP, SP--MU, and SP--R specific plan zoning districts, and provides that those zoning districts are compatible only with the SP Special Plarming land use designation, the Initiative-created Sonora Commercial Specific Plan zoning is unauthorized by the General Plan -- which preempts the creation of new unidentified zoning districts - and cannot be deemed consistent with the General Plan or the applicable HC land use designation. importantly, Walmart and Grinnell could have but did not draft the Initiative to also amend the General Plan to resolve these incompatibilities. "The amendment of general plan elements in an initiative measure to ensure consistency with the subject matter of the initiative is a valid exercise of the initiative power." Citizens for Planning Responsibly v. County of San Luis Obispo (2009) 176 Cal.App.4th 357, 378. In fact, when Walmart ran the same Specific Plan play in the City of Kerman in the Spring of 2011, Section 2 of their proposed initiative amended components of the Kerman General Plan in order to expressly authorize using specific plans for regional commercial development. RJN EX 015-016. The inclusion of this language in the Kerman initiative -- which post--dated the filing of this lawsuit is telling. Third, even if the Sonora Commercial Specific Plan zoning could be deemed consistent with the Compatibility Table, this Specific Plan zoning district expressly conflicts with Section 1.1 of the Land Use Element relating to Special Planning Zones. That section provides: 9 GPENING BRIEF IN GE PETITIGN FGR WRKT GE MANDATE f-r--t r--U.) 43>> U1 E0 l\-7 28 Consider requiring, in the Special Planning (SP) Zone, the preparation and submittal of a Municipal Fiscal Impact Statement prepared by a professional real estates (sic) economic analyst addressing some or all of the following: i. The property and other municipal tax and fee revenue that may be generated. ii. The municipal expenses and burdens that may be generated The impact of ancillary business to be generated in existing business centers by the population of and visitors to the project, and the demand for ancillary development to be generated. EX 030 The Initiative does not include such a statement. Nor does anything in the Initiative require the preparation of such a statement at a later date or even suggest that requiring such a statement was even considered and dismissed as required by the General Plan. In short, in their haste to thwart CEQA and public input Grinnell and Walmart failed to recognize and attempt to cure the Initiative's inconsistency with the General Plan. And whether the Initiative were adopted by resolution of the City Council or an election of the people this inconsistency is fatal. For, as the Supreme Court instructs, "We cannot at once accept the function of a general plan as a 'constitution,' or perhaps more accurately a charter for future development, and the proposition that it can be amended Without notice to the electorate that such amendment is the purpose of an initiative. Implied amendments or repeals by implication are disfavored in any case. . .The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. The tail does not wag the dog. The general plan is the charter to which the ordinance must conform." Lesher Communications Inc. v. City of Walnut Creek (1990) 52 Cal.3d. 531, 540-1 [holding growth control initiative enacted by voters was invalid because it conflicted with the general plan's policies favoring growth and the zoning initiative could not be interpreted as a general plan amendment]. 5 5 See also, Building Industry Assn. V. City of Oceanside (1994) 27 Cal.App.4-Eh 744 in which the Fourth Appellate District applied Lesher to invalidate a growth control initiative enacted by the electorate that the court concluded conflicted with the general plan's policy to provide adequate housing for all "economic segments of the community." l_0 GPENENG IN FGR WRET GF gt pad r--t U3 r--A 45- o--l\-7 --J 28 V. EURGNEURLUSIGN For the foregoing reasons, the initiative is inconsistent with the General Plan and therefore was void ob inirio upon adoption. Accordingly, Petitioner respectfully requests this Court issue a writ of mandate declaring the Initiative invalid and directing the City to set aside its approval of Ordinance No. 796. DATED: January 17, 2012 Respectfully submitted, HERUM CRABTREE A California Professional Corporation :1 2 5; s. JoLLfi*a1( Attorneys for Petitioners Tuolurnne obs Small Business Alliance By: 11 PETITIGNERS GPENING BRIEF EN SUPPORT FOR WRIT OF MANBATE Printable version: Walmart wins big with California initiatives mm Back to advertisement I your ad here art wins big with California initiatives Will Evans, California Watch Thursday, November 24, 2011 In a push to expand across California without interference, Walm art is increasingly taking advantage of the state's initiative system to threaten elected officials with costly special elections and to avoid environmental lawsuits. The Arkansas--based retailer has hired paid signature gatherers to circulate petitions to build new superstores or repeal local restrictions on big-box stores. Once 15 percent of eligible voters sign the petitions, state election law puts cash-strapped cities in a bind: City councils must either approve the Walmart-drafted measure without changes or put it to a special election. As local officials grapple with whether to spend tens of thousands or even millions of taxpayer dollars on such an election, Walm art urges cities to approve the petition outright rather than send it to voters. While most development projects don't attract much controversy, Walrn art has become controversial across California. Backers of organized labor have demonized the company for opposing unions and paying low wages, while other critics say its superstores cripple local businesses and increase sprawl. Walmart's use of the initiative process has angered elected officials who say the company's political strategy effectively holds them hostage. "They circumvented the system and blackmailed the town," said Rick Roelle, a councilman in Apple Valley (San Bernardino County), where Walmart pushed through a superstore proposal in April. "We've had controversial projects, but we were never bullied like Walmart." Walmart and its supporters argue that the strategy helps speed up development that can boost employment and tax revenue as well as low-price shopping. The initiative process, according to the company, pressures cities only because it shows the strong community support for Walmart. "The initiative process was an opportunity that allowed voters to voice their support for the benefits that Walmart would bring their community, including jobs, affordable groceries, increased tax revenue, and infrastructure improvements," Walm art spokeswoman Delia Garcia said in a statement. The company has employed the same well--honed strategy across the state, from the Central Valley agricultural community of Kerman (Fresno County) to the Silicon Valley suburb of Milpitas to Apple Valley, where the main street has a special crosswalk button for horse riders. 1 U4 Printable version: Waimart wins big with California initiatives Ramping up Walmart has ramped up the campaign in the last year, pushing through four new superstore projects and fighting big--boX regulations in San Diego. The company spent $2 million on the -effort, paying election lawyers, campaign consultants and public relations firms. Walmart often rallies a crowd of supporters at city council meetings to back up its position. Pastor Ray Smith, president of a group called Pastors on Point, asked his followers to support Walmart in San Diego. He spoke passionately against an ordinance imposing new regulations on Superstores, saying other stores don't hire enough African Americans. At one city meeting, he called on a group of young people to stand and told the City Council, "You want to stop the violence? We need jobs." Walmart paid Smith's church to bus supporters to council meetings and shuttle young people who gathered signatures for a ballot initiative petition against the regulations. Walmart's local political committee also reported paying $13,400 in salary and consultant payments to Smith directly, in addition to $5,500 labeled "van/bus rental." Smith said the campaign filings were incorrect. "They did rent our buses but I was never a consultant for them," he said. Walmart uses the ballot initiative process in part to shield its superstores from lawsuits under the California Environmental Quality Act. The landmark 1970 law requires state and local agencies to review and mitigate the environmental and traffic impacts of development projects. Lawyers often sue Walmart, contending that the review didn't go far enough. The company has found a loophole: Once it switches to a ballot initiative, the law doesn't apply. Other companies occasionally pursue ballot initiatives on development projects. But Walmart is the main player, and California is the main battleground. Walm art's successful strategy raises questions about whether California's communities dogged by economic woes can afford an aggressive use of the state's system of direct democracy. Other interest groups could use the same strategy to pressure elected officials, as medical marijuana advocates recently did to defeat pot-club regulations in San Diego. This year, four cities approved Walm art's initiative petition without an election. One of them, San Diego, repealed its own superstore regulations in the face of an election that could have cost $3.4 million. Only Menifee in Riverside County held a special election, costing taxpayers $79,000. Walm art spent nearly $400,000 there -- and won handily. Qppone rats' stance The strategy violates the spirit, if not the letter, of state environmental law, said Richard Frank, form er 2.14 Printable version: Wairnart wins big with California initiatives California chief deputy attorney general for legal affairs. "it is disturbing because it appears to be a fairly overt circumvention of the CEQA process," said Frank, now director of the California Environmental Law 8: Policy Center at the UC Davis School of Law. Walmart argues that it closely adheres to California's extensive regulations. The strategy is necessary, it says, to avoid spurious lawsuits targeting the company for political reasons. The retailer points out that it goes much of the way through a planning process, allowing for an environmental impact report and public input, before heading to the ballot box. "In many places around the state," Garcia said, "we often obtain store approvals but are subjected to special interests that attempt to use political and legal challenges to unfairly delay a store's construction." Since the 1990s, activists also have used ballot initiatives to block Walmart stores. Walmart turned that strategy on its head when it began proposing its own initiatives. The company suffered a sobering, nationally publicized loss in Inglewood in 2004. The company spent more than $1 million on a ballot measure to open a superstore there. Unions fought back, and voters shot it down. But Walrnart hasn't lost in California since. in 2007, Walmart used the initiative process to force Long Beach to repeal an ordinance banning certain superstores that sell groceries. The council, facing tough budgetary times, decided the city couldn't afford an election, giving in to the company. In 2009, Walmart defeated a big-box ban in Salinas the same way. Last year, city councils approved Walm art superstore initiatives without an election in the small Gold Country city of Sonora and the Mojave Desert military base community of Ridgecrest. This year, with five victories, has been Walm art's busiest. Walmart continues to see a big opportunity for growth in California. The company already has 212 stores and employs 67,525 people in the state. Sometimes, council members ask Walmart to pay for the election. This year in Pittsburg, for example, another developer offered to pay for the election costs of its ballot initiative. But Walmart always declines. "We are not embarrassed by our decision to move to an initiative and to allow the electorate to overwhelmingly weigh in, but we are not prepared to cover any costs for an election," Walrnart spokesman Aaron Rios said at an Apple Valley Town Council meeting in April. California Watch, the state's largest investigative reporting team, is part of the independent, nonprofit Center for investigative Reporfing. For more, visit This article appeared on page 2 of the San Francisco Chronicle 332% 3! 12 Printable version: Walmart wins big with California initiatives (C) 2011 Hearst Communications Inc. |-Privacy Poiicy Feedback RSS Feeds FAQ Site index I Contact 4J4 I-wt r--t rd [0 [0 l\-7 (A) L0 -13- Lil [0 ON I0 --.1 28 PROOF OF SERVICE I, Laura Cummings, certify and declare as follows: I am over the age of 18 years, and not a party to this action. My business address is 2291 West March Lane, Suite 100, Stockton, California 95207, which is located in the county where the mailing described below took place. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing. On January 17, 2012, at my place of business a copy of OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE was placed for deposit following ordinary course of business as follows: BY U.S. MAIL - with the United States Postal Service in a sealed envelope, with postage thereon fully prepaid. The envelope was addressed as follows: Richard Matrariga Edward P. Sangster City Attorney Gates, LLP City of Sonora Four Embarcadero Center, Suite 1200 94 N. Washington Street San Francisco, CA 94111 Sonora, CA 95370 Phone: (415) 882-8200 Phone: (209) 532-4541 Fax: (209) 532-2739 Fax: (415) 882-8220 Attorneys for Real Parties in Interest Attorneys for Respondents CITY OF SONORA WALMART STORES. INC. Roger A. Brown 38 N. Washington St. Sonora, CA 95370 Phone: (209) 533-7755 Fax: (209 533-7757 Attorney for Real Party in Interest JAMES GRINNELL BY FEDERAL MAIL in a sealed envelope, with postage thereon fully prepaid. [Code Civ. Proc., 1013(0), 2015.5.] BY PERSONAL DELIVERY. BY FACSIMILE at approximately by use of facsimile machine telephone number (209) 472-7986. I caused the facsimile machine to print a transmission record of the transmission, a copy of which is attached to this declaration. The transmission was reported as complete and without error. [Cal. Rule of Court 2008 and I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: January 17, 2012 MW Hi I . LAURA CUMMINGS l2 OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF