Wal-Mart Stores, Inc. v. City of Turlock, No. 1:04-CV-05278 OWW DLB.
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California |
| Writing for the Court | Wanger |
| Citation | 483 F.Supp.2d 987 |
| Parties | WAL-MART STORES, INC., a Delaware corporation, and Wal-Mart Real Estate Business Trust, a Delaware statutory trust, Plaintiffs, v. CITY OF TURLOCK, Turlock City Council, and Does 1 through 10, inclusive, Defendants. |
| Decision Date | 03 July 2006 |
| Docket Number | No. 1:04-CV-05278 OWW DLB. |
v.
CITY OF TURLOCK, Turlock City Council, and Does 1 through 10, inclusive, Defendants.
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Michael J. Coffino, Steefel, Levitt & Weiss, a Professional Corporation, Alison Hersey Mijares, Ann Marie Heimberger, Steefel Levitt and Weiss, San Francisco, CA, John P. Kinsey, Sagaser, Jones & Hahesy, Fresno, CA, for Plaintiffs.
Benjamin Peters Fay, Rick W. Jarvis, Jarvis, Fay & Doporto LLP, Oakland, CA, for Defendants.
WANGER, District Judge.
Defendants the City of Turlock and the Turlock City Council (collectively, "the City") move for summary judgment against Plaintiffs Wal-Mart Stores, Inc., and Wal-Mart Real Estate Business Trust (collectively, "Wal-Mart"). Wal-Mart opposes the motion.
The complaint was filed on February 11, 2004. Doc. 1, Compl. The City moved for summary judgment on March 29, 2005. Doc. 50, Mot. for Summ. J.; Doc. 51, Mem. in Supp. Wal-Mart filed opposition on November 2, 2005. Doc. 155, Mem. in Opp. The City responded on December 12, 2005.
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Doc. 190, Resp. in Supp. Oral argument was heard on February 6, 2006, during which leave was granted to supplement the pleadings regarding whether Wal-Mart's putative as-applied challenge to the Ordinance is ripe. Wal-Mart filed its supplemental response in opposition to summary judgment on February 21, 2006. Doc. 204, Suppl. Mem. in Opp. The City replied to the supplemental response on February 27, 2006. Doc. 207, Reply to Suppl. Mem. in Opp. Wal-Mart filed its second supplemental response in opposition to summary judgment on March 24, 2006. Doc. 216, Suppl. Mem.2d in Opp.
Wal-Mart states: "This litigation involves collusion between Defendants the City of Turlock and the Turlock City Council ... and local supermarkets and local producers of goods by amending the Turlock Zoning Code ... and the City's Northwest Triangle Specific Plan[.]" Doc. 155, Mem. in Opp., 1. On November 20, 2003, the City Planning Commission (Commission) conducted a public hearing regarding "proposed amendments to the [City] zoning ordinance and the Northwest Triangle Specific Plan" that would: (a) "Define and classify large-scale (`big box') retail stores"; (b) "Require a Conditional Use Permit for certain large-scale retail stores (`discount stores' and `discount clubs')"; and (c) "Prohibit `discount superstores' which are large-scale (greater than 100,000 square feet) retail stores that also devote more than 5% of sales floor area to non-taxable (grocery) items — typically such stores contain a full service grocery department." Doc. 191, Def.'s Resp. to Pl.'s Statement of Disputed Facts in Opp. to Def.'s Mot. for Summ. J. [hereinafter, "Def.'s RSDF"; undisputed unless otherwise noted] # 90. On November 20, 2003, after public comment, the Commission voted to recommend the proposed ordinance to the Council. Doc. 191, Def.'s RSDF # 91.
On December 16, 2003, and January 13, 2004, the Council adopted Ordinance Nos. 1015-CS and 1016 (the Ordinance). Doc. 165, Pl.'s Objections and Resp. to Def.'s Statement of Undisputed Facts in Opp. to Def.'s Mot. for Summ. J. [hereinafter "Pl.'s RSUF"; undisputed unless otherwise noted] # 1. The Ordinance amended the City's Zoning Code and Northwest Triangle Specific Plan, and was codified in Sections 9-1-202 and 9-3-302 of the Turlock Municipal Code. Doc. 165, Pl.'s RSUF # 3.
The Ordinance created three new categories of commercial retail land uses: "Discount Stores," "Discount Clubs," and "Discount Superstores." Doc. 165, Pl.'s RSUF # 30. "Discount Stores" are:
stores with off-street parking that usually offer a variety of customer services, centralized cashing, and a wide range of products. ["Discount Stores"] usually maintain long store hours seven (7) days a week. The stores are often the only ones on the site, but they can also be found in mutual operation with a related or unrelated garden center or service station. Discount stores are also sometimes found as separate parcels within a retail complex with their own dedicated parking.
Doc. 165, Pl.'s RSUF # 31.
A "Discount Club" is:
a discount store or warehouse where shoppers pay a membership fee in order to take advantage of discounted prices on a wide variety of items such as food, clothing, tires, and appliances; many items are sold in large quantities or bulk.
Doc. 165, Pl.'s RSUF # 33.
A "Discount Superstore" is:
a store that is similar to a "Discount Store" ... with the exception that [it]
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also contain[s] a full-service grocery department under the same roof that shares entrances and exits with the discount store area. Such retail stores exceed 100,000 square feet of gross floor area and devote at least five percent (5%) of the total sales floor area to the sale of non-taxable merchandise.... These stores usually offer a variety of customer services, centralized cashing, and a wide range of products. They typically maintain long store hours seven (7) days a week. The stores are often the only ones on the site, but they can also be found in mutual operation with a related or unrelated garden center or service station. Discount superstores are also sometimes found as separate parcels within a retail complex with their own dedicated parking.
Doc. 165, Pl.'s RSUF # 32. See also Ordinance No. 1016 (set forth in Decl. of Michael I. Cooke [hereinafter, "Cooke Decl."], Ex. B, 6). The Ordinance definitions of "Discount Store," "Discount Club," and "Discount Superstore" closely resemble the definitions of these terms in Trip Generation (6th ed.1997), a publication of the Institute of Transportation Engineers (ITE). See Cooke Decl., Ex. G; see also Doc. 165, Pl.'s RSUF ## 39-41 (undisputed as to the ITE definitions of these terms).
In Turlock, discount stores and discount clubs are permitted conditional uses in the C-C, C-H, and C-T commercial zones. Doc. 165, Pl.'s RSUF ## 34, 35. Discount superstores are not permitted uses, conditional or otherwise, in any City zone. Doc. 165, Pl.'s RSUF # 36. The Ordinance prohibits Plaintiff from siting a Wal-Mart Supercenter (a "Discount Superstore") in Turlock. Doc. 165, Pl.'s RSUF # 105.
The Ordinance's Preamble makes the following findings:
• WHEREAS, the [City] General Plan (including, but not limited to, policies 2.4-a, 2.4-g, 2.4-h, 2.4-j, 2.4-k) establishes locational requirements for the [regional and neighborhood] retail centers: encouraging a number of neighborhood centers equally dispersed throughout the [C]ity while encouraging a concentration of regional shopping centers along the Highway 99/Countryside Drive corridor [Doc. 165, Pl.'s RSUF # 5 (Preamble text undisputed) ]; and
• WHEREAS, General Plan policies promote and encourage vital neighborhood commercial districts that are evenly distributed throughout the city so that residents are able to meet their basic daily shopping needs at neighborhood shopping centers [Doc. 165, Pl.'s RSUF # 6 (Preamble text undisputed)]; and [•] ...
• WHEREAS, given the changes in the retail sector and the evolution toward ever-bigger stores, it is necessary that the zoning ordinance be amended to regulate larger retail establishments appropriately and to afford them adequate review [Doc. 165, Pl.'s RSUF # 7 (Preamble text undisputed)]; and
• WHEREAS, the [City] zoning ordinance (Title 9 of the [City] Municipal Code) has not kept pace with the evolution of the retail sector and fails to adequately distinguish the size, scale and scope of various retail activities; and [¶] ...
• WHEREAS, the establishment of discount superstores in Turlock is likely to negatively impact the vitality and economic viability of the [C]ity's neighborhood commercial centers by drawing sales away from traditional supermarkets located in these centers [Doc. 165, Pl.'s RSUF # 9 (Preamble text undisputed) ]; and
• WHEREAS, industry and academic studies indicate discount superstores
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rarely add any retail services currently not provided within a community, and that the majority of sales growth at a discount supercenter comes from a direct shift of dollars from existing retailers within a community, primarily from grocery stores [Doc. 165, Pl.'s RSUF # 10 (Preamble text undisputed)]; and
• WHEREAS, discount superstores compete directly with existing grocery stores that anchor neighborhood-serving commercial centers [Doc. 165, Pl.'s RSUF # 11 (Preamble text undisputed)]; and
• WHEREAS, smaller stores within a neighborhood center rely upon the foot traffic generated by the grocery store for their existence and in neighborhood centers where the grocery store closes, vacancy rates typically increase and deterioration takes place in the remaining center [Doc. 165, Pl.'s RSUF # 12 (Preamble text undisputed)]; and [¶] ...
• WHEREAS, discount superstores adversely affect the viability of small-scale, pedestrian-friendly neighborhood commercial areas, contributing to the blight in these areas [Doc. 165, Pl.'s RSUF # 13 (Preamble text undisputed)]; and
• WHEREAS, the [Ordinance's proposed zoning changes] are intended to preserve the [C]ity's existing neighborhood-serving shopping centers that are centrally located within the community ... [Doc. 165, Pl.'s RSUF # 15 (Preamble text undisputed)]; and
• WHEREAS, the [C]ity's current distribution of neighborhood shopping centers provides convenient shopping and employment in close proximity to most residential neighborhoods in Turlock, consistent with the Turlock General Plan [Doc. 165, Pl.'s RSUF # 16 (Preamble text undisputed)]; and
• WHEREAS, this distribution of shopping and employment creates a landuse...
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Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, Case No. 07–CV–6304 (KMK).
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Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, Case No. 07-CV-6304 (KMK)
...of a Wal-Mart," because the plaintiff "never even completed an initial application"); Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 987, 998-99 (E.D. Cal. 2006) (noting that for an as-applied challenge to land use regulations to be ripe, a "final decision by the government agenc......
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