Posted by: Patricia Salkin | December 24, 2007

CA Appeals Court Says Nonpublic Letter by City Community Development Director Involving Proposed Wal-Mart Violated His Limited Review Authority

Spanos initially received approvals from the City for the development of the 560 acre project  pursuant to a Master Development Plan (MDP) that requires, among other things, density transfer development for high density housing (Density Agreement) in the mixed use zone (MX).   As originally proposed, the project was to include business and residential development (935 multi-familty units within the mixed use component of the project were to be provided), but it was later changed to retail and residential development. After the environmental review had been completed, Spanos informed the City that it desired to build a Wal-Mart store on parcels  designated solely for high density residential development by both the Density Agreement and the MDP.

The City Community Development Director sent a letter to Spanos that stated in part, “it has been determined” by an “initial staff review” that the plans for the store were “in substantial conformance” with the MDP adopted by the City.  At issue was whether this letter constitutes an approval for the project.  The letter was not posted, published or otherwise made public and the trial court concluded that therefore the letter did not constitute an “approval” of the Wal-Mart project. Furthermore, the trial court concluded that the letter did not constitute a determination by a “public agency” since the Director was not delegated and could not have been delegated authority to approve a project requiring environmental review.

The Appellate Court affirmed, revisiting the initially approved MDP which provided in part, that “All development within the Plan area…is meant to be developed according to the primary use identified by the A.G. Spanos Business Park Conceptual Site Plan…”  It was further noted that the revised project was not reviewed under either the environmental review or the supplemental environmental review since Wal-Mart project had not been authorized by any of the underlying project documents that had been approved by the City Council (e.g., the MDP, the Density Transfer Development Agreement, and related planning and zoning amendments).  

The Court reviewed the steps leading to the perceived Director’s approval including a series of confirming letters from Spanos, and concluded that the public was not informed of the Director’s decision (as was required), that the letter was such that it induced Spanos to seek confirmation that it actually constituted a decision (in part because it was labeled “status report”), and that the only formal notice of the decision was when it was filed with the county clerk two months later as a notice of determination (therefore it was not part of the administrative record as is required). Therefore, since there was no valid approval of the project, there was valid notice of exemption and the statute of limitations did not begin to run.     

Further, the California Environmental Quality Act (CEQA) provides that the statute of limitations for project review runs from the date a public agency has approved the project.  Therefore, it was critical to determine whether the Director’s actions could have constituted agency approval.  Noting that although CEQA Guidelines note that a public agency can delegate its decision making authority to “any person…within a public agency permitted by law to approve or disapprove the project at issue…”, the Court said that this does not extend to a project with environmental consequences, concluding that the MDP “does not authorize Director to approve a project which is not within the MDP or has environmental consequences.”  For all of these reasons, the Court held that neither the Director’s determination nor the notice of determination were valid, and that the period of limitations for challenging the determination did not commence.

Stockton Citizens for Sensible Planning v. City of Stockton, 2007 WL 4182188 (Cal. App. 3 Dist. 11/28/2007). 

The opinion can also be accessed at:

The case is also highlighted on the Wal-Mart Watch blog at: 

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