Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911
Decision: http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2006/h028539.html

Yet another Wal-Mart challenge, centering around urban decay and adequate public notice. The opponents questioned the opportunity for adequate public review and raised three points regarding urban decay impacts on the CBD: 1) City failed to do an initial study and thus did not produce information on whether the earlier studies adequately addressed the urban decay issues, 2) City could not rely on 2001 MND as primary CEQA document for a tiered EIR, and 3) the current EIR failed to explain why urban decay impacts were less than significant.

Although the Court found that the City did not provide public notice of the full review period (publication resulted in notice for 42 days of a 45 day review period), it determined that this was offset by the City’s good faith effort to provide notice, including noticing through other methods, such as mailing of the notice to surrounding property owners, and to interested persons and agencies. Take home message - in order to provide evidence of adequate public review: keep records of posting, records of mailing lists of surrounding property owners and occupants along with evidence of mailing; copies of webpage notices and newspaper articles; and evidence of mailing to the commenting agencies. PMC should recommend that the agency have a written checklist identifying noticing procedures and “proof of” requirements for both EIRs and ND’s, or create this form for agencies where we serve as contract staff.

The administrative record showed adequate information and analysis regarding the potential for urban decay. The Court specifically identified that CEQA does not require an initial study where the lead agency has already decided that an EIR will be prepared (CEQA Guidelines Section 15063), but did go on to state that the project tiered off of previous EIRs which provided analysis of the environmental issues with an adequate level of detail. Regarding the tiering issue, the Court identified that the Wal-Mart EIR expressly stated the prior CEQA documents, referencing that it tiered from a MND prepared for the project site and the Revised General Plan EIR, and incorporated those documents and the Rincon Plaza EIR, also prepared for the project site, by reference. Regarding adequate information on urban decay impacts, the Court found that although the City refused to commission additional economic studies for the Wal-Mart project, that the Council had a fully-developed picture of the economic impacts of the project, with relevant information provided by the Rincon Plaza EIR and Spectrum Report (these two documents provided detailed analysis associated with converting the Rincon Plaza annexation area including the site to commercial uses and identified that the CBD was already in decline) and the hearing process. The Court determined that the whole record provided substantial evidence that urban decay was adequately considered in connection with the project.

William Abbot, CEQA and land use attorney, published a blog article on the case.