Atwell v. City of Rohnert Park ( 2018 )

Filed 9/18/18; Modified and Certified for Partial Publication 9/26/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
NANCY ATWELL et al.,
Plaintiffs and Appellants,
A151896, A153011
v.
CITY OF ROHNERT PARK, (Sonoma County
Super. Ct. No. SCV256891)
Defendant and Respondent;
WAL-MART STORES, INC.,
Real Party in Interest.
Appellants Nancy Atwell, Elizabeth Craven, and Matthew Weinstein appeal the
denial of their petition for writ of mandate against the City of Rohnert Park (City). In
2010 and 2015, the city council approved and reapproved an expansion for an existing
Wal-Mart store, which would include a full grocery component. Appellants contend the
city council’s second approval was inconsistent with its General Plan and land use policy
LU-7. The trial court concluded appellants’ petition was barred by res judicata because a
prior petition challenging the city council’s initial approval also asserted a claim
contesting General Plan consistency. The trial court further held appellants’ petition was
barred by the statute of limitations and substantial evidence supported the city council’s
determination the expansion complied with the General Plan. We affirm the judgment.
I. BACKGROUND
A. The Initial Project and EIR
The City’s General Plan includes land use policy LU-7 (hereafter Policy LU-7)
which declares the City’s obligation to: “Encourage new neighborhood commercial
facilities and supermarkets to be located to maximize accessibility to all residential areas.
[¶] The intent is to ensure that convenient shopping facilities such as supermarkets and
drugstores are located close to where people live and facilitate access to these on foot or
on bicycles. Also, because Rohnert Park’s residential population can support only a
limited number of supermarkets, this policy will encourage dispersion of supermarkets
rather than their clustering in a few locations.” (Italics omitted.)
In 2009, Wal-Mart Stores, Inc. (Wal-Mart) filed an application with the City,
proposing to expand its existing store located in the northwest corner of town. The
expansion would add approximately 36,000 square feet to the existing Wal-Mart “big
box” discount store for the addition of a 24-hour grocery/supermarket (Project).
In 2010, the City prepared a draft environmental impact report (EIR). That EIR
evaluated whether the Project was consistent with the General Plan. With regard to
Policy LU-7, the draft EIR concluded the Project was “consistent.” It stated: “The
proposed project would expand the existing Walmart store to add space for food sales.
There are no existing grocery stores within a 1-mile radius of the project site; therefore,
the proposed project would be consistent with the commentary language concerning
dispersal of grocery uses throughout the City. Furthermore, the proposed project would
install bicycle storage facilities and enhance pedestrian facilities to improve accessibility
for these modes of transportation. Finally, the 24-hour operation of the expanded store
would provide local residents with the opportunity to shop at times when existing stores
are not open . . . . These characteristics are consistent with the objective of maximizing
accessibility to supermarkets.”
In response, the City received public comments asserting the Project was not
consistent with the General Plan or Policy LU-7. These letters argued the Project would
close existing neighborhood-serving grocery stores, is located in a large commercial area,
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and would contribute to an over-concentrated area around the U.S. Highway 101/Rohnert
Park Expressway interchange.
The City addressed these comments in its final EIR. It concluded the concerns
lacked merit and did not detract from the Project’s consistency with Policy LU-7.
Specifically, it noted the Project would be “well-positioned” to serve residents in
northern Rohnert Park as well as residents in Cotati and southwest Santa Rosa. The City
further noted drive times to the Project are shorter than or similar to the time needed to
reach other existing supermarkets.
The planning commission subsequently considered the EIR. Following a public
hearing, the planning commission declined to approve the original EIR or the Project.
The planning commission instead concluded the EIR and Project did not comply with the
General Plan and was, in part, inconsistent with Policy LU-7.
Wal-Mart subsequently appealed the planning commission’s decision to not
certify the EIR, arguing the EIR satisfied the requirements of the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and complied
with Policy LU-7. Following a public hearing at which Policy LU-7 was discussed, the
city council granted the appeal and specifically found “The Project would be consistent
with all applicable General Plan goals and policies . . . .” The resolution approving the
site plan concluded: “The Project, as proposed and with recommended conditions and
mitigation measures, will be consistent with the General Plan and Zoning Ordinance.”
B. The Sierra Club Action
Sierra Club and Sonoma County Conservation Action (SCCA) filed a petition for
writ of mandate in Sonoma County Superior Court challenging the city council’s EIR and
Project approvals. (Sierra Club v. City of Rohnert Park (2012, No. SCV248112) (Sierra
Club action).) Appellants were not named parties in that action. The petition asserted
three causes of action for violating CEQA, the state Planning and Zoning Law (Gov.
Code, § 65000 et seq.), and the Rohnert Park Municipal Code. The second cause of
action for violations of the state Planning and Zoning Law alleged: “The Project is
inconsistent and incompatible with applicable goals, policies and objectives of the
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Rohnert Park General Plan, including but not limited to . . . Policy LU-7 . . . .” The
Sierra Club action requested in part a peremptory writ of mandate commanding the City
to set aside its EIR certification and Project approval.
Although raised in its petition, Sierra Club and SCCA did not pursue the claim
that the Project conflicted with Policy LU-7. The trial court subsequently granted the
petition and ordered the resolutions approving the Project be vacated and the Project be
remanded for additional environmental review. Specifically, the court ordered “the EIR
must address each and every traffic mitigation measure proposed for the Project and
reanalyze the cumulative noise impacts . . . .”
C. Revised EIR and Subsequent Administrative Appeals
The City vacated the Project approvals and prepared a revised EIR. However, the
revised EIR did not alter the original EIR’s analysis of the Project’s consistency with the
General Plan.
In 2014, the planning commission held a public hearing on the revised EIR.
Appellants objected to the Project during this hearing, alleging the Project “is in a section
of town that has very few residents in it, and . . . that’s clearly at odds with the LU-7 plan.
The original economic plan says that it would draw customers from a wide area.” In
response, the City asserted the Project “is consistent with City of Rohnert Park’s General
Plan. [¶] Even now, one and two neighborhoods coming on line in the west side of
Rohnert Park are neighborhoods that will need grocery stores and services. There are
other businesses operating at an expanded time frame, where those workers do need
grocery stores and services.” The City also took the position that the issue of urban
decay was not part of what the court found inadequate about the EIR and thus is not
before the planning commission. The planning commission subsequently certified the
revised EIR and reapproved the Project.
Appellants then appealed the planning commission’s decision. At the public
hearing on the appeal, appellants again objected to the Project and challenged its
consistency with the General Plan. Wal-Mart opposed the appeal and argued the Project
complied with Policy LU-7 for three principal reasons: (1) the Project is located where
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there are no competing supermarkets within a mile, thereby meeting the goal of
dispersing supermarkets; (2) the supercenter will be open 24 hours a day, helping
augment options for local customers; and (3) the City, in the intervening years, has
approved residential construction in the vicinity of Project. The City staff report also
opined the Project was consistent with Policy LU-7, noting: “If anything, the Project is
more consistent with the objectives of Policy LU-7 today than it was when it was
considered in 2010 because of increased residential development in the vicinity of the
Project.” The city council denied the appeal and concluded the Project would comply
with the City’s General Plan and zoning ordinance.
D. Trial Court Proceedings
In 2015, appellants filed a petition in the superior court challenging the Project’s
consistency with Policy LU-7 and seeking a writ of mandate ordering the City to vacate
the Project approvals. After merits briefing was completed, the City filed a motion for
judgment on the pleadings asserting appellants’ claims were barred by the doctrine of res
judicata.
The trial court issued a tentative order denying the petition and granting the City’s
motion for judgment on the pleadings. The tentative order concluded the petition was
barred by res judicata and the statute of limitations. The order further concluded
substantial evidence supported the city council’s determination of General Plan
consistency. Appellants did not contest the tentative order, and judgment was entered in
favor of the City. Appellants timely appealed.
II. DISCUSSION
A. Motion for Judgment on the Pleadings
“ ‘A judgment on the pleadings in favor of the defendant is appropriate when the
complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion
for judgment on the pleadings is equivalent to a demurrer and is governed by the same de
novo standard of review.’ [Citation.] ‘All properly pleaded, material facts are deemed
true, but not contentions, deductions, or conclusions of fact or law . . . .’ ” (People ex rel.
Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal. 4th 772, 777.)
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In granting the City’s motion for judgment on the pleadings, the trial court
concluded appellants’ petition was barred by res judicata and the statute of limitations.
For the reasons we explain below, we conclude res judicata bars appellants’ petition.
Accordingly, we need not address whether it also is barred by the statute of limitations.
1. Res Judicata
“The doctrine of res judicata bars a party and persons in privity with that party
from relitigating a claim following a final judgment on the merits of the claim. ‘ “ ‘The
prerequisite elements for applying the doctrine to either an entire cause of action or one
or more issues are the same: (1) A claim or issue raised in the present action is identical
to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a
final judgment on the merits; and (3) the party against whom the doctrine is being
asserted was a party or in privity with a party to the prior proceedings.’ ” ’ ” (Roberson
v. City of Rialto (2014) 226 Cal. App. 4th 1499, 1510 (Roberson).) Res judicata not only
bars issues actually litigated but also bars issues that could have been litigated, as long as
the later-raised issues constitute 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 (Federation of Hillside).)
The City claims appellants’ petition is barred by res judicata because consistency
with the General Plan was challenged in the Sierra Club action, the Sierra Club action
resulted in a final judgment, and appellants are in privity with Sierra Club and SCCA.
While appellants agree the Sierra Club action resulted in a final judgment, they contend
this petition raises distinct claims and they are not in privity with Sierra Club and SCCA.
a. Identical Cause of Action
The second claim in the Sierra Club action alleged violations of the state Planning
and Zoning Law. It asserted the Project “is inconsistent and incompatible with applicable
goals, policies and objectives of the Rohnert Park General Plan,” including Policy LU-7.
Similarly, appellants’ petition contends the Project violates the state Planning and Zoning
Law because it conflicts with the Rohnert Park General Plan. The petition alleges “the
Project directly contravenes Policy LU-7” and, due to such inconsistency, “the City acted
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in an arbitrary and capricious manner and committed a prejudicial abuse of discretion in
approving the Project . . . .” The petition also seeks a declaration of rights under the
terms of the General Plan. Accordingly, the two petitions appear to raise the same issue
regarding the Project’s compliance with the City’s General Plan.
Appellants assert their petition raises a distinct issue because the question of
whether the Project is consistent with the General Plan was not actually litigated in the
Sierra Club action. But as noted above, res judicata may bar issues that “could have been
litigated.” (Federation of Hillside, supra, 126 Cal.App.4th at p. 1202, italics added.)
Appellants, however, contend their petition could not have been litigated in the Sierra
Club action because it is based on the city council’s 2015 resolutions, which were
approved following the Sierra Club action and contain new findings of General Plan
consistency.
Whether appellants’ challenge to the city council’s 2015 resolutions and the prior
challenge to the city council’s 2010 resolutions constitute the same cause of action turns
on whether “they are based on the same ‘primary right.’ ” (Federation of Hillside, supra,
126 Cal.App.4th at p. 1202.) That is, “[t]he plaintiff’s primary right is the right to be free
from 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 plaintiff and the same
wrong by the defendant then the same primary right is at stake even if in the second suit
the plaintiff pleads different theories of recovery, seeks different forms of relief and/or
adds new facts supporting recovery.’ ” (Tensor Group v. City of Glendale (1993)
14 Cal. App. 4th 154, 160.)
In arguing the city council’s 2015 resolutions constitute a new wrong, appellants
rely on Planning & Conservation League v. Castaic Lake Water Agency (2010)
180 Cal. App. 4th 210 (Castaic Lake). In that case, a nonprofit organization challenged an
EIR concerning a water transfer. (Id. at p. 219.) The appellate court directed the
issuance of a writ vacating the certification of the EIR as legally inadequate. (Id. at
p. 221.) After a second EIR was certified in 2004, another petition was filed challenging
the revised EIR. (Id. at pp. 218–219, 224.) The court concluded the subsequent petition
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involved a different cause of action because the second EIR was a “factually distinct
attempt[] to satisfy CEQA’s mandates.” (Id. at p. 228.) Specifically, the court concluded
the initial action “and the underlying actions involve distinct episodes of purported
noncompliance regarding ‘the same general subject matter’ [citation], namely, the
public’s statutory right to an adequate EIR concerning the [water] transfer [citations].”
(Ibid.)
While Castaic Lake concluded the second petition could proceed due to
“ ‘changed conditions and new facts which were not in existence at the time the action
was filed’ ” (Castaic Lake, supra, 180 Cal.App.4th at p. 227), other courts have found
subsequent petitions barred because they arise from materially similar facts. For
example, in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal. App. 4th
455 (Ballona Wetlands), objectors filed petitions for writs of mandate challenging Los
Angeles’s certification of an EIR and project approvals for a certain real estate
development. (Id. at p. 462.) After the trial court granted the petitions in part, Los
Angeles vacated its certification of the EIR and project approvals. (Id. at p. 463.) Los
Angeles then revised certain sections of the EIR, recertified it, and reapproved the
project. (Id. at p. 464.) The objectors again challenged the EIR based both on the
revisions and on new grounds. (Ibid.) The court concluded the objectors were barred
from raising new challenges to the revised EIR: “After considering the petitioner’s
challenges to an EIR or other agency action and rendering a final judgment and
peremptory writ of mandate, a trial court evaluating a return to the writ may not consider
any newly asserted challenges arising from the same material facts in existence at the
time of the judgment. To do so would undermine the finality of the judgment.” (Id. at
p. 480.)
Similarly, in Federation of Hillside, supra, 126 Cal. App. 4th 1180, Los Angeles
prepared a general plan framework and EIR, which cited and relied in large part on a
transportation improvement mitigation plan. (Id. at p. 1190.) Following an initial
petition challenging the general plan framework and EIR, Los Angeles amended the EIR
to add responses to comments on the transportation improvement mitigation plan, made
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new findings regarding mitigation measures, adopted a statement of overriding
considerations, and readopted the general plan framework. (Id. at pp. 1191–1192.) A
second petition was filed challenging the adoption of the general plan framework, CEQA
findings, and statement of overriding considerations. (Federation of Hillside, at p. 1193.)
On appeal, the court noted certain current findings by Los Angeles were substantially
identical to its prior findings. (Id. at p. 1202.) Despite Los Angeles’s reliance on
information that postdated its initial CEQA findings, the court found “the material facts
have not changed and . . . the two proceedings involve the same primary right and the
same cause of action” because the reapproval of the general plan framework was
primarily based on information and analysis contained in the original EIR. (Federation
of Hillside, at p. 1204.)
We do not find these cases inconsistent. Both Castaic Lake and Ballona Wetlands
cite Federation of Hillside. And neither disputes the holding in Federation of Hillside—
namely, that res judicata barred the petitioners’ challenges in the second proceeding
because, in part, “the material facts had not changed and the issues asserted in the later
proceeding could have been asserted in the prior proceeding.” (Ballona Wetlands, supra,
201 Cal.App.4th at p. 480; see Castaic Lake, supra, 180 Cal.App.4th at p. 229
[distinguishing Federation of Hillside on the basis that it “challenged the same EIR and
the material facts had not changed”].) Ballona Wetlands likewise concluded the
materials facts had not changed such that res judicata was appropriate. (Id. at p. 480.)
Castaic Lake, however, found material facts had changed and allowed the second petition
to proceed. (Id. at p. 228.)
Accordingly, the key question is whether the city council’s 2015 resolutions
adopted new findings such that they constituted a new injury to appellants and a new
wrong by the City. The city council’s 2010 resolutions found, in relevant part, “The
Project, as proposed and with recommended conditions and mitigation measures, will be
consistent with the General Plan and Zoning Ordinance.” Likewise, the 2015 resolutions
found, in relevant part, “The Project, as proposed and with recommended conditions and
mitigation measures, will be consistent with the General Plan and Zoning Ordinance.”
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There is no dispute the Project proposal remains unchanged. And both the 2010 and
2015 resolutions found the Project “will be consistent with the General Plan and Zoning
Ordinance.” Accordingly, the city council’s 2015 resolutions raised a new issue only if
the “recommended conditions and mitigation measures” included new or revised
conditions or measures that are at issue in appellants’ petition.
In the Sierra Club action, the trial court reversed the EIR because it was deficient
in that it (1) failed to address certain proposed mitigation measures in connection with
traffic impacts; and (2) failed to support its cumulative noise impact analysis with
substantial evidence, consider mitigation measures, or adopt a statement of overriding
consideration. The revised EIR addresses these two issues through revisions to (1) the
executive summary matrix row regarding noise; (2) the section on noise, including
thresholds of significance, project impacts, and mitigation measures; (3) the section on
transportation; (4) the section on cumulative effects of noise; and (5) revisions to the
cumulative noise analysis appendix. The revised EIR also added two new appendices on
transportation demand management and store information (operations, policies,
transportation demand management measures). No other revisions were made. The
revised EIR does not mention Policy LU-7, and appellants’ petition does not challenge
the traffic or noise analyses. Rather, the petition focuses on the Project’s location as
incompatible with the goal of maximizing accessibility to residential areas.
Consequently, even though the city council’s 2015 resolutions are “new” and revisions
were made to the EIR and its discussion of mitigation measures, these revisions are
unrelated to Policy LU-7.
Moreover, all of appellants’ arguments regarding Policy LU-7 are identical to
those raised and argued before the city council in 2010. Concerns regarding the Project’s
compliance with the General Plan and Policy LU-7 were raised, discussed, and evaluated
in connection with the original EIR and Project approval. Nothing in the record suggests
appellants’ current petition materially differs from the General Plan consistency claim
raised in the Sierra Club action or the issues raised in public hearings on the original EIR
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and Project approvals. Accordingly, appellants’ petition is not based on changed material
facts and raises the same claims as raised in the Sierra Club action.
b. Privity
Appellants next argue no privity exists between them, Sierra Club and SCCA
because they (1) were not parties to the Sierra Club litigation, (2) are unaffiliated with the
Sierra Club or SCCA, (3) did not coordinate with Sierra Club or SCCA on the prior
litigation, and (4) seek redress for both public and private harms. In response, the City
contends appellants are in privity with Sierra Club and SCCA because both petitions seek
to bring claims on behalf of the public against a public entity.
“ ‘ “The concept of privity . . . refers ‘to a mutual or successive relationship to the
same rights of property, or to such an identification in interest of one person with another
as to represent the same legal rights . . . .’ ” ’ ” (Roberson, supra, 226 Cal.App.4th at
p. 1511, italics omitted.) “Over time, courts have embraced a somewhat broader, more
practical concept of privity. ‘ “[T]o maintain the stability of judgments, insure
expeditious trials,” prevent vexatious litigation, and “to serve the ends of justice,” courts
are expanding the concept of privity beyond the classical definition to relationships
“ ‘sufficiently close to afford application of the principle of preclusion.’ ” ’ [Citation.]
For example, more recently our Supreme Court explained the basic tenets of privity in
broader terms: ‘As applied to questions of preclusion, privity requires the sharing of “an
identity or community of interest,” with “adequate representation” of that interest in the
first suit, and circumstances such that the nonparty “should reasonably have expected to
be bound” by the first suit. [Citation.] A nonparty alleged to be in privity must have an
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) 23 Cal.App.5th
262, 276–277.) “Put another way, privity, ‘ “as used in the context of res judicata or
collateral estoppel, does not embrace relationships between persons or entities, but rather
it deals with a person’s relationship to the subject matter of the litigation.” ’ ” (Id. at
p. 277, italics omitted.)
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Here, both appellants’ petition and the prior petition allege claims as, and on
behalf of, citizens, taxpayers, property owners, and electors of Rohnert Park. While
appellants argue their petition sets forth a private harm “ ‘because they will be directly
and substantially affected by the adverse community impacts that may result from the
Project,’ ” appellants fail to distinguish this harm from that alleged in the Sierra Club
action. Nor do we see any meaningful distinction.
A similar argument was asserted and rejected in Roberson, supra, 226 Cal. App. 4th
1499. In that matter, the City of Rialto approved construction of a large commercial
retail center. (Id. at p. 1502.) Rialto Citizens for Responsible Growth (Rialto Citizens)
petitioned to invalidate the project approvals based in part on a defect in the city council
hearing notice. (Id. at p. 1505.) The trial court invalidated the approvals, which was then
reversed on appeal. (Id. at p. 1506.) Roberson subsequently filed a writ petition
contesting the defect in the city council hearing notice. (Id. at p. 1504.) Roberson argued
he was not in privity with Rialto Citizens because “he brought his petition ‘in his own
interest,’ while Rialto Citizens challenged the project approvals on public interest
grounds.” (Id. at p. 1512.) However, Roberson’s petition focused on “harm [to] the
community” rather than harm to himself. (Id. at pp. 1512–1513.) Accordingly, the court
concluded “Roberson ‘ “ ‘ “had an identity or community of interest with, and adequate
representation by” ’ ” ’ Rialto Citizens on his defective notice claim, both during the July
2008 city council hearings and in the Rialto Citizens action.” (Id. at p. 1513.)
Accordingly, when an alleged harm impacts the public rather than a specific entity, the
privity analysis must focus on the “community of interest” 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 (Assn. of Irritated Residents),
the case relied upon by appellants, distinguishable. While that case applied a more rigid
interpretation of privity, it relied upon cases involving specific harm to an entity, not a
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public harm.1 (Id. at p. 1232, citing Rodgers v. Sargent Controls & Aerospace (2006)
136 Cal. App. 4th 82, 86 [action for personal injuries caused by asbestos exposure] &
Lucido v. Superior Court (1990) 51 Cal. 3d 335, 339 [prosecution for indecent exposure].)
This case raises issues of harm to the community—namely, the detrimental impact
to neighborhood supermarkets caused by having one located in a large commercial area.
Despite their claims of personal harm, appellants do not allege any such harm apart from
that incurred by the community. Likewise, Sierra Club and SCCA brought their petition
on behalf of its members who are part of the community. Within this framework,
appellants’ and Sierra Club’s and SCCA’s “ ‘ “relationship to the subject matter of the
litigation” ’ ” is identical. (Castillo v. Glenair, Inc., supra, 23 Cal.App.5th at p. 277,
italics omitted.)
Nor have appellants asserted their interest was not adequately represented in the
Sierra Club litigation. (See, e.g., Assn. of Irritated Residents, supra, 11 Cal.App.5th at
p. 1233 [presumed common interests “effectively abdicated by lack of vigor in
representation” because Sierra Club failed to timely appeal]; Castaic Lake, supra,
180 Cal.App.4th at p. 231 [statement that environmental entity lacked funds to challenge
the EIR “display[ed] an ‘abdication of the role of public agent’ [citation] and an
abandonment of ‘its intention to represent the interests of the general public’ ”].) Barring
such evidence, we must assume Sierra Club and SCCA diligently litigated their petition
and made an informed decision not to pursue the General Plan consistency argument.
(City of Santa Maria v. Adam (2012) 211 Cal. App. 4th 266, 286 [“The most fundamental
rule of appellate review is that a judgment is presumed correct, all intendments and
presumptions are indulged in its favor, and ambiguities are resolved in favor of
1
In addition, the petitioners in Assn. of Irritated Residents submitted declarations
indicating they were unaware of the prior 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.) The record does not suggest such evidence exists in this matter.
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affirmance.”].) Accordingly, we find appellants in privity with the petitioners in the
Sierra Club action.
2. Public Policy Exception
Finally, appellants argue this court should consider their challenge because it
raises a question of law regarding statutory interpretation. Even if the elements of res
judicata are met, the California Supreme Court has held “ ‘when the issue is a question of
law rather than of fact, the prior determination is not conclusive either if injustice would
result or if the public interest requires that relitigation not be foreclosed.’ ” (City of
Sacramento v. State of California (1990) 50 Cal. 3d 51, 64.) But in this instance,
appellants are not asserting a question of law regarding statutory interpretation. Rather,
they seek interpretation of an ordinance as it applies to the Project approval. Such a
claim inherently requires the court to consider the facts and circumstances surrounding
the Project. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal. App. 4th
296, 327.)
Accordingly, appellants’ petition is barred by res judicata. Even assuming
appellants’ petition is not barred by res judicata, we cannot conclude no reasonable
person could have found the Project consistent with the General Plan and Policy LU-7.2
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, Van de Kamps Coalition v. Board of
Trustees of Los Angeles Community College Dist. (2012) 206 Cal. App. 4th 1036, and City
of Chula Vista v. County of San Diego (1994) 23 Cal. App. 4th 1713. However, none of
these cases are analogous because they involve initial approvals upon which later actions
were based. (See Honig, at p. 528 [obtained variance and then obtained building permit
consistent with that variance]; Van de Kamps, at pp. 1047–1048 [resolution approving
project triggered statute of limitations rather than date lease was executed]; Chula Vista,
at pp. 1720–1721 [same].) Here, however, the initial city council approvals 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, italics omitted.) However, we need not resolve this dispute in light of our
other holdings herein.
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B. Project Consistency with Policy LU-7
Appellants contend the City erroneously concluded the Project was consistent with
Policy LU-7. Specifically, they allege no reasonable person would find such consistency
because the evidence demonstrates the Project would not be “neighborhood-serving” and
would likely result in the closure of existing neighborhood-serving markets. We
disagree.
1. Standard of Review
“Under the Government Code, every county and city is required to adopt ‘ “a
comprehensive, long-term general plan for the physical development of the county or city
. . . .” (Gov. Code, § 65300.) . . . “ ‘[T]he propriety of virtually any local decision
affecting land use and development depends upon consistency with the applicable general
plan and its elements.’ [Citation.]” [Citation.]’ [Citation] [¶] ‘ “ ‘An action, program, or
project is consistent with the general plan if, considering all its aspects, it will further the
objectives and policies of the general plan and not obstruct their attainment.’ [Citation.]”
[Citation.] State law does not require perfect conformity between a proposed project and
the applicable general plan . . . .’ ” (The Highway 68 Coalition v. County of Monterey
(2017) 14 Cal.App.5th 883, 896.)
“ ‘A city’s findings that the project is consistent with its general plan can be
reversed only if it is based on evidence from which no reasonable person could have
reached the same conclusion. [Citation.]’ [Citation.] Thus, the party challenging a city’s
determination of general plan consistency has the burden to show why, based on all of the
evidence in the record, the determination was unreasonable.” (Pfeiffer v. City of
Sunnyvale City Council (2011) 200 Cal. App. 4th 1552, 1563; The Highway 68 Coalition
v. County of Monterey, supra, 14 Cal.App.5th at p. 896.)3
3
Appellants appear to argue different standards apply to this review, with some
courts applying a “reasonable person” standard and some an “abuse of discretion”
standard. We find no meaningful distinction between these two standards as they are
applied to such reviews. (See Nevarrez v. San Marino Skilled Nursing & Wellness
Centre, LLC (2013) 221 Cal. App. 4th 102, 120 [“ ‘A court abuses its discretion if its
ruling is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” ’ ”].)
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2. Analysis
The City’s General Plan sets forth various land use policies designed to support its
general land use goals, including to “Promote a balanced land use program and increase
the ability of people to live and work in the city.” The General Plan lists 37 policies to
support these goals. Policy LU-7 articulates a policy to “Encourage new neighborhood
commercial facilities and supermarkets to be located to maximize accessibility to all
residential areas.” The General Plan states: “The intent [of Policy LU-7] is to ensure that
convenience shopping facilities such as supermarkets and drugstores are located close to
where people live and facilitate access to these on foot or bicycles. Also, because [the
City’s] residential population can support only a limited number of supermarkets, this
policy will encourage dispersion of supermarkets rather than their clustering in a few
locations.” (Italics omitted.)
The parties have a fundamental disagreement regarding whether Policy LU-7
requires the Project to be “neighborhood-serving” or just “located to maximize
accessibility to all residential areas.” Nothing in the text of Policy LU-7 employs the
phrase “neighborhood-serving” and we believe appellants’ interpretation overemphasizes
the word “neighborhood” to the detriment of the surrounding text. Policy LU-7 expressly
encourages supermarkets “to be located to maximize accessibility to all residential areas.”
But this phrase should be interpreted in accordance with the explanatory text. (Woodland
Park Management., LLC v. City of East Palo Alto Rent Stabilization Bd. (2010)
181 Cal. App. 4th 915, 920 [“ ‘The primary duty of a court when interpreting a statute is to
give effect to the intent of the Legislature, so as to effectuate the purpose of the law.’ ”].)
When Policy LU-7 and the explanatory text are read together, the general goal of Policy
LU-7 is to “maximize access” to supermarkets, such as by (1) locating supermarkets in
proximity to where people live, (2) supporting various modes of transportation to access
these supermarkets, and (3) encouraging dispersion of supermarkets. Accordingly, the
key question is whether the Project would generally increase or decrease supermarket
access for City residents.
16
Appellants first argue the Project would result in the closure of Pacific Market, a
then-existing neighborhood market, because the region can only support a finite number
of supermarkets. However, closure of a supermarket would only be relevant under Policy
LU-7 if it impacted residents’ access to supermarkets. On this point, the City offered
evidence indicating its residents’ access to supermarkets has not been and would not be
impacted. The initial EIR concluded if Pacific Market closed, then by 2016 it anticipated
sufficient demand for the space to be retenanted as a grocery store. Pacific Market did, in
fact, close during the course of this litigation. And, as predicted, in 2014 that space was
retenanted as a “Walmart Neighborhood Market.” Accordingly, the record suggests the
Project has not impacted the number of “neighborhood” supermarkets in the City. While
appellants cite to their expert report that opines the Project will trigger at least one store
closure, it is unclear how such closure would impact residents’ access to supermarkets.
Appellants next contend the Project is in an isolated location, zoned for regional
commercial land use, and thus cannot serve neighborhood population centers as intended
by Policy LU-7. Evidence submitted in 2010 noted only 2,814 people live within one
mile of the Project as opposed to 12,603 people who live in proximity to Pacific Market.
However, the record also indicates the Project is in a designated “new growth area.”
Additional housing units are planned in the area surrounding the Project. The City
further noted southwest Santa Rosa lacked supermarkets, and it anticipated the Project
would also serve those areas and Cotati. And the isolated location arguably satisfies
Policy LU-7’s guidance that supermarkets be “dispersed” as there are no other existing
grocery stores within a one-mile radius of the Project. Moreover, recreational facilities, a
trail system, and a bicycle circulation system are planned as part of the area’s growth
strategy. The Project would include bicycle storage and enhanced pedestrian facilities to
connect to these new systems.
Finally, the parties dispute the usefulness of the Project’s 24-hour operations.
While appellants argue two 24-hour supermarkets already exist, the EIR indicates the
Project may be a closer option to some residents than those other supermarkets.
17
The parties have identified contradictory evidence on how the Project impacts
supermarket access. But it is not our task to resolve such conflicts. Rather, the sole
question is whether, “based on all of the evidence in the record,” “ ‘no reasonable person
could have reached the same conclusion’ ” as the trial court. (Pfeiffer v. City of
Sunnyvale City Council, supra, 200 Cal.App.4th at p. 1563.) Here, the record shows the
Project is in a new growth area with increasing residential communities, it is providing
24-hour operations, and is located at least a mile from the next closest supermarket. The
record also shows the current residential community surrounding the Project is likely
insufficient to support the Project and the Project may place financial stress on other
supermarkets in the City. Considering the evidence as a whole, the trial court’s decision
was not palpably unreasonable, and thus did not exceed the City’s “ ‘broad discretion.’ ”
(Ibid.)
III. DISPOSITION
The judgment is affirmed. Defendant City of Rohnert Park may recover its costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
18
____________________________
Margulies, J.
We concur:
_____________________________
Humes, P.J.
_____________________________
Banke, J.
19
Filed 9/26/18
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
NANCY ATWELL et al., A151896, A153011
Plaintiffs and Appellants,
(Sonoma County
v. Super. Ct. No. SCV256891)
CITY OF ROHNERT PARK,
ORDER CERTIFYING OPINION
Defendant and Respondent; FOR PARTIAL PUBLICATION AND
WAL-MART STORES, INC., MODIFYING OPINION
Real Party in Interest and
Respondent. NO CHANGE IN JUDGMENT
THE COURT:
The opinion in the above-entitled matter filed on September 20, 2018, was not
certified for publication in the Official Reports. 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 of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part II.B.
It is further ordered that the opinion be modified as follows:
1. In the title, list Wal-Mart Stores, Inc. as “Real Party in Interest and
Respondent.”
2. On page 18, part III., in the citation at the end of the paragraph add “(5),” so the
citation reads:
(Cal. Rules of Court, rule 8.278(a)(1), (2), (5).)
There is no change in the judgment.
Dated:
___________________________
Humes, P.J.
2
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Rene A. Chouteau
Counsel:
Shore, McKinley & Conger, LLP, Brett S. Jolley for Plaintiffs and Appellants.
Burke, Williams & Sorensen, LLP, Michelle Marchetta Kenyon and Nicholas J.
Muscolino for Defendant and Respondent City of Rohnert Park.
Morgan, Lewis & Bockius, LLP, Rollin B. Chippey and Deborah E. Quick for Real Party
in Interest and Respondent Wal-Mart Stores, Inc.
3