Wal-Mart center court date looming

Group challenging environmental review

jsmith@mercedsunstar.comOctober 3, 2012 

— In a more than 2-year-old court battle, the Wal-Mart distribution center approved for the city of Merced is quickly approaching what could be its last legal hurdle.

The 5th District Court of Appeal in Fresno is scheduled to hear oral arguments Tuesday in a case brought by a group of area residents challenging the environmental review document for the project.

City officials seemed confident in the run-up to the proceedings.

"There are cases that I worry about at night," said Greg Diaz, city attorney. "This isn't one of them."

The Merced Alliance for Responsible Growth -- composed of several longtime Merced residents -- filed the challenge to the city's California Environmental Quality Act review of the project.

The alliance is being represented by Keith Wagner of Lippe Gaffney Wagner LLP, a law firm based in San Francisco.

"The environmental review (the city) did was deficient," Wagner said "They have not done the environmental review that would allow the public or the city to understand what the true impacts are of the project."

Merced Superior Court Judge William Burby disagreed with Wagner's arguments in 2010, finding the city's environmental document sound.

The city's environmental review of the distribution center was extremely thorough, and included a peer review of the final document done by an outside consultant, said Kim Espinosa, planning manager with the city of Merced who worked on the project.

"I've never seen that done for any other environmental review," she said. "That's how careful we were to make sure we weren't missing anything. We went over and above what has been done on other projects."

The alliance didn't agree. In 2011 it filed the appeal, insisting that the city had not properly studied the project's potential impact on air quality, traffic and city wells.

"For the most part, agencies do this all day and nobody has any issues because they do what is required," Wagner said. "Here they just did not disclose the impacts, so no one can decide what appropriate mitigation should be implemented."

The city maintains that Wal-Mart will be subject to a number of mitigation requirements that will address environmental concerns. Measures include costs for road construction and new bike lanes, as well as requiring installation of solar or other alternative energy sources.

The approved proposal is for a 1.1-million-square-foot distribution center on a 235-acre site south of Childs Avenue at the northwest corner of Gerard Avenue and Tower Road.

It will take at least two years of permitting and construction before the distribution center is operating, according to city planning officials.

The center is expected to be fully operational three years after opening, running 24 hours a day and employing about 1,200 people.

The center would include a 17,000-square-foot truck-maintenance building with two underground oil storage tanks and a fueling station with two 20,000-gallon diesel fuel storage tanks.

A decision in the appeals case is expected within 120 days of next week's proceedings, in which a three-justice panel will give each side 30 minutes to state its case and answer questions.

If the court sides with the alliance, the city likely would be ordered to revise parts of its environmental document before the project could move forward.

The ruling can be appealed to the California Supreme Court.

Reporter Joshua Emerson Smith can be reached at (209) 385-2486 or jsmith@mercedsunstar.com.

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