Special Sections : Walmart

Thursday, May 12 2011 08:02 AM

Walmart decision delayed

A Southern California attorney brought Tehachapi’s up-or-down decision on Walmart to a halt March 28.


The attorney, Cory Briggs of the Upland-based Briggs Law Corporation, has become known for challenging Walmart projects. In at least four cases he reportedly negotiated a settlement which allowed planned stores to move forward.

The Tehachapi Planning Commission approved the Walmart Supercenter proposed for land owned by the company near the corner of Tucker Road and Tehachapi Boulevard on Jan. 31 by a 4-1 vote.
However, Tehachapi businessman Henry Schaeffer filed an appeal, which moved the matter forward to the Tehachapi City Council and a special meeting on Monday, March 28.

Following four hours of speakers — including city staff, consultants, representatives of Walmart and the public — City Attorney Tom Schroeter announced that documents had arrived that day from an organization called CREED-21, supporting the appeal and presenting a list of reasons for denying the project. He advised the council to defer deliberation on the matter until the documents could be reviewed.

A pained groan and atmosphere of disbelief rolled over the hundred or so hardy souls left of the 700 who had filled the bleachers at 6 p.m. 

Briggs represents CREED-21, which stands for Citizens for Responsible Equitable Environmental Development.

Under recent case law triggered by the litigious slugfest that delayed the opening of the Panama Lane Walmart in Bakersfield for six years, the city of Tehachapi is obliged to review the CREED-21 documents even though they came in long after the legal deadline for comment, Schroeter said. 
In what Schroeter later called a “document dump,” the papers and a computer disk arrived at Tehachapi City Hall at 10:02 a.m. the day of the meeting.

Neither Briggs nor Mekaela Gladden of San Diego Public Advocates Guild, who signed the letter that accompanied the documents, was available for comment during the week following the March 28 Tehachapi hearing. The Tehachapi News will again attempt to contact them this week.


Briggs settlements

Following similar environmental and legal challenges in other cities, Walmart has settled with Briggs on four California projects.

The cities are Lake Forest, Victorville, San Bernardino and Hesperia.

The agreements were made between Briggs and Walmart, and the cities were informed after the fact, according to letters sent to the mayors and city council members of the cities.

While the agreements are confidential,  the letters contain a short list  of publicly announced, identical mitigation measures.

Walmart settled in return for a promise from Briggs (representing CREED-21 or other organization such as Grow Victorville Smart)) to back off.

The letters say, “In addition, CREED has agreed not to object to, or disrupt, the opening of the expansion of the Walmart (Lake Forest) store.” 

The letters to the cities are signed by Briggs and  Richard Lawrence, who is identified as chairman of CREED, and officers or attorneys representing Walmart.

In his Tehachapi comments received last week, Briggs challenges the adequacy of the EIR (see related story).


Taking it to the people

In a new tactic, others cities —  Menifee and Apple Valley among them — will hold municipal elections so the citizens can decide whether or not they want a Walmart. 

Menifee City Clerk Kathy Bennett said the Planning Commission of the two-year-old city of 67,000 in Riverside County approved the Walmart eight months ago. 

Anti-Walmart folks filed an appeal, she said, and Briggs filed a lawsuit.

“As soon as the appeal was filed, Walmart came and pulled the project and environmental documents. They filed notice of intent to circulate a petition (for a ballot measure).

“They needed 7,000 signatures. They got over 8,000 in 10 days.”

The petition for the 68-page ballot measure (a description of the project) was certified sufficient, Bennett said, at which time the City Council agreed to study the matter for 30 days, requesting additional reports on traffic and on mitigation funds.

The council’s request for reports pushed the timing of a possible election further off. Bennett said she was hoping to piggyback the Walmart measure on Gov. Jerry Brown’s proposed tax election in June, but “the governor failed me.”

On the 30th day after certification, upon receiving the requested additional reports, the Menifee City Council gave Walmart the go-ahead for an election.

“They chose to send it to a vote,” Bennett said. “It’s scheduled for June 7.”

She said the City of  Menifee will pay for its election. 

‘Overwhelming support’

The same election process is taking place in San Bernardino County’s Apple Valley, where Walmart withdrew its application for entitlement permits on Jan. 25 and on the same day submitted a ballot initiative to take the matter to the voters.

According to Aaron Rios, Walmart’s senior manager of public affairs, as quoted in a Victor Valley Daily Press story by Tomoya Shimura, Walmart planned to pursue the ballot initiative before the appeal.
“We are doing this to show that we have the overwhelming support from the community,” Rios said in the Press. “I believe this is the most efficient way to get this store open as soon as possible.”

Walmart currently is collecting signatures in Apple Valley.

Inglewood, another city that chose to go the election route, ended up with no Walmart after a vote that went 60 percent against it spoke to the impact of strong objections from unions and the city itself.

Taking the issue to the people has been successful several times.

Voters approved a second Walmart in Palmdale in 1998. That same year, an election in Glendora approved a Sam’s Club (a Walmart company).

In Lodi, Atascadero, Ventura and Redlands, voters defeated initiatives that would have stopped Walmart projects in those cities.

Sacaramento-based Amelia  Neufeld,  Walmart senior manager, government affairs and public relations, issued the following official corporate statement on the Tehachapi turn of events after a meeting with company lawyers: 

“On behalf of our customers and more than 3,400 area supporters, we will continue to work with the Tehachapi community to create jobs and provide opportunities for more families to save money on the products and services that are important to them.”

CREED-21

Information about CREED-21 is almost non-existent. The organization appears to have no local links or any structure such as a non-profit charter, and no identifiable members or officers beyond Briggs and Lawrence.

Local Walmart opponents Shannon Turner and Henry Schaeffer both said they had never heard of the organization and they were as surprised as anyone else when Schroeter announced that the CREED-21 documents had arrived and were an issue.

On a document on the Internet relating to an EIR on a section of I-5 in San Diego County, CREED-21 shares a letterhead with four  environmental organizations, including the San Diego Chapter of the Sierra Club.

Pamela Epstein, chair of the San Diego Sierra Club Chapter legal committee, signed that document as “Policy Attorney, CREED-21.”

 Briggs has litigated or threatened litigation on Walmart projects in Lancaster, at the Barstow Distribution Center, Victorville Walmart/Sam’s Club, Victorville West (U.S. 395 and Mojave St.), Hesperia, Rosemead, Ontario, Glendora, Menifee, Foothill Ranch, Rialto, Vista, San Bernardino (Highland Ave.) and Ridgecrest.

He also has litigated on Super Target projects in Menifee and Murrieta and a Dr. Pepper Snapple bottling plant in Victorville.

‘Just slows it down’

Briggs Law Corporation faxed a letter in opposition to the Tehachapi project to City Hall dated Jan. 7, 2011, addressed to the Tehachapi Planning Commission for that body’s Jan. 10 public hearing. That two-paragraph letter, which is generic and not specific to the Tehachapi Walmart, is date-stamped “Received, Jan. 11, 2011, City of Tehachapi.”

The law corporation may be establishing a paper trail in the event of future litigation.

“They filed a comment to the EIR at the Planning Commission stage,” city attorney Schroeter said. “It is designed to keep them on record so it is not to be said they didn’t exhaust all administrative remedies.”

At this stage, Briggs is creating a slight diversion but not a derailment.

“The challenge to an EIR doesn’t stop a project, it just slows it down,” Schroeter said.

Sometimes, he said, a developer who has a lot of borrowed money on the line needs to get tenants in and “will pay (an opponent) money just to go away.”

The opponents get legal fees paid if they prevail, he said.

Although some cities working with Walmart, including Menifee, reportedly have had indemnification agreements which require Walmart to pay costs associated with defending the EIR, Shroeter said Tehachapi has no such agreement at this time.


What happens next?

At Tehachapi City Hall, Community Development Director David James is heading up the team that will respond in detail to the questions posed by Briggs in the documents that arrived March 28. 

As lead agency, the city is responsible for assembling a response in the same manner as it has done with the EIR.

“We’ll pore through the comments that came in and assign individual parts of the Walmart team in preparing a response,” James said.

“We’re going to treat these — even though the 45-day period is long past — as conventional EIR comments. We’ll do another round.”

The responses will be in the record but not folded into the EIR, James said. 

On March 31, James had a conference call with city staff and the EIR consultants to sort out who will be assigned which sections of Briggs’ objections. Within a week, James’ team will convene again in a conference call to work out how much time each needs to complete the assigned tasks. 

When the responses are complete, a special city council meeting — a continuation of the March 28 hearing — will be scheduled. The five council members will discuss the matter and most likely take the vote.

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