Court OKs Wal-Mart distribution center

jsmith@mercedsunstar.comNovember 29, 2012 

— The 5th District Court of Appeal in Fresno ruled in favor of the city of Merced on Thursday, rejecting a lawsuit that sought to block construction of a Wal-Mart distribution center planned for the city.

In light of the decision, the city expects the project to move forward in the near future, said City Attorney Greg Diaz.

"We're ecstatic with the outcome," he said "There was years of work that went into this. If I weren't in a public office, I'd say break out the champagne."

The decision can be appealed to the state Supreme Court, which has discretion over whether to hear the case. The court accepts only a small percentage of cases filed.

Wal-mart has signaled it will break ground only after all litigation has been resolved.

The Merced Alliance for Responsible Growth filed the challenge to the city's California Environmental Quality Act review of the project in the fall of 2009.

"Our intent was to make (the project) as clean and decent a proposal as possible, but Wal-Mart was in charge," said Tom Grave, a resident and co-chairman of the alliance. "And the City Council and the Planning Commission didn't see fit to enforce a lot of things that could have made this project a clearer one."

After a Merced Superior Court sided with the city, the alliance filed an appeal, insisting the city had not thoroughly studied the project's potential impact on air quality, traffic and city wells.

However, the city successfully argued that it did a proper environmental review, which required Wal-Mart to implement a number of mitigation measures, including costs for road construction and new bike lanes.

City officials hailed the decision as a win for the area's economy, with the project expected to bring in an initial 600 jobs, and up to roughly 1,200 over time.

"Fantastic news," said Mayor Stan Thurston. "A well-deserved Christmas present for the city of Merced. It means jobs, jobs, jobs."

In the long run the city will "regret" this decision, said Kyle Stockard, a resident and co-chairman of alliance.

"I don't think you're going to get all those jobs that they're promising," he said. "A lot of them don't work full-time hours, and they don't get benefits. You're not going to be able to buy a home on what you make with a Wal-Mart salary."

The alliance -- which consists of a roughly few dozen local residents -- was represented by Lippe Gaffney Wagner LLP, a law firm based in San Francisco. According to the alliance, the firm did not charge the group for legal services.

The city-approved project is for a 1.2-million-square-foot facility on a 235-acre site south of Childs Avenue at the northwest corner of Gerard Avenue and Tower Road.

The center is approved to operate 24-hours a day, seven days a week, with about 450 daily truck trips into and out of the facility.

The plan for the center includes 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.

It will likely take two years to permit and construct the facility, according to city planning officials.

Reporter Joshua Emerson Smith can be reached at (209) 385-2486 or

Distribution Center Timeline

2005: Wal-Mart proposes a 1.2-million square foot distribution center that would serve 49 existing stores when it opens and have the capacity to serve dozens more. It pledged to create 900 full-time jobs with an average wage of $17.50.

September 2009: After three years of studies and six hours of public debate, the Merced City Council votes to let Wal-Mart build a massive distribution center on 230 acres between Childs and Gerard avenues.

October 2009: The Merced Alliance for Responsible Growth, opponents to the Wal-Mart distribution center, file a lawsuit in Merced County Superior Court arguing more should be done to lessen the project's impact on the area and environment.

June 2010: Retired Judge William Burby, who served as a Los Angeles County Superior Court judge until 1994, replaces retired Merced County Superior Court Judge Frank Dougherty on the case.

March 2011: Judge William Burby ruled in favor of the city of Merced, saying it didn't violate the California Environmental Quality Act in its paperwork for the proposed Wal-Mart distribution center.

May 2011: Members of the Merced Alliance for Responsible Growth said they plan to file an appeal to the 5th District Court of Appeals in Fresno.

October 2012: In a more than 2-year-old court battle, the Wal-Mart distribution center approached a possible last legal hurdle as the 5th District Court of Appeal in Fresno heard oral arguments.

November 2012: The 5th District Court of Appeal in Fresno ruled unanimously in favor of the city of Merced.

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