Inclusion Of “Supercenter” In Project Does Not Necessarily Trigger Requirement That An Environmental Impact Report Analyze Possible Urban Decay Effects

In Melom v. City of Madera, (— Cal.Rptr.3d —-, Cal.App. 5 Dist., March 24, 2010), a California Court of Appeal considered whether California law requires an environmental impact report (“EIR”) to include analysis of possible urban decay impacts whenever a “supercenter” is included in a project. The Court of Appeal held that California case law “should not be construed as holding that the inclusion of a retail store called a ‘supercenter’ necessarily triggers a requirement that the project’s EIR include an examination of possible urban decay effects.”


The City of Madera (“City”) certified an EIR for a proposed retail center that would include approximately 795,000 square feet of floor area to be located on a 100-acre site just outside of City’s limits. City later annexed the project site. The plan for the retail center showed approximately 30 retail spaces. The largest retail space was shown on the plan as being comprised of 125,000 square feet.

The retail center developer later submitted a refined site plan to City for review. The renewed site plan showed the largest retail space planned as 198,484 square feet, excluding a 10,900 garden center. The new plan called for a “Super Target” to be located in the largest retail space. In May 2007, City’s Community Development Director (“CDD”) approved the refined site plan. City prepared an “Addendum” to the EIR in which it concluded “there are no substantial changes proposed in the Project which would require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” City adopted a resolution approving the Addendum. The CDD explained at the City Council meeting that there was no net increase in total building area. No one asked the CDD questions at the meeting or spoke against the resolution approving the Addendum.

Patricia Melom filed a petition for writ of mandate alleging City violated the California Environmental Quality Act (“CEQA”) when it failed to prepare a subsequent EIR after the largest retail space increased from 138,000 square feet to 198,484 square feet. The trial court denied Melom’s petition.


The Court of Appeal affirmed the judgment of the trial court. Melom asserted that prior California case law requires “that whenever a governmental entity approves a project which includes a so-called supercenter . . . approval of such a project requires an EIR addressing ‘potential urban decay effects’ which might result from the supercenter. The court found prior case law does not support Melom’s position.

Section 21166 of CEQA provides that no subsequent or supplemental EIR is required unless (1) there are substantial changes proposed that will require major revisions to the EIR; (2) “[s]ubstantial changes occur with respect to the circumstances under which the project is being undertaken which will require major renovations in the [EIR];” or (3) new information becomes available that was not or could not have been known at the time the EIR was certified. The court found that none of the circumstances outlined in section 21166 were present to require a subsequent or supplemental EIR. There was no change of circumstances that justified repeating the EIR analysis. The addition of a so-called supercenter alone was not enough to trigger a violation of section 21166.

The court found Melom did not point to any evidence in the record that revealed there was the possibility of any potential urban decay effects that might result from City’s approval of the project with the revised site plan. The court noted that in the previous cases cited by Melom there was evidence that the projects could cause urban decay. Here, Melom presented no such evidence.

The court noted that the term “supercenter” was not defined in the previous cases, CEQA, or CEQA Guidelines. One of the previous cases noted that many so-called supercenters operate 24 hours per day, seven days per week. Here, it was projected that the proposed retail establishments, including the Super Target, would adhere to normal hours for retail establishments within the county. The court noted that even if it assumed “that a ‘supercenter’ was something with a precise definition (such as, hypothetically, a retail establishment which sells both groceries and other merchandise and is of a size which meets or exceeds a certain minimum square footage), [it would] still reject [Melom’s] contention that under [prior case law], the inclusion of a ‘supercenter’ in a project, without more, automatically triggers a requirement of an EIR analysis of whether the project will cause ‘urban decay effects.'”


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