attorneys real in interest wal-mart stores, inc. superior
TRANSCRIPT
I MANATT, PHELPS & PHILLIPS, LLPJACK S. YEH (Bar No. CA 174286)
2 MATTHEW S. URBACH (Bar No. CA 192059)VIRAL MEHTA (Bar No. CA 261852)
3 11355 West Olympic BoulevardLos Angeles, CA 90064-1614
4 Telephone: (310) 312-4000Facsimile : (310) 312-4224
5Attorneys for Real Party In Interest
6 WAL-MART STORES, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN DIEGO --- CENTRAL DIVISION
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II COALITION FOR SAFE AND HEALTHYECONOMIC PROGRESS,
Case No. 37-2012-00095729-CU-MT-CTL
12Plaintiff and Petitioner,
Honorable Joel M. Pressman
13vs.
REAL PARTY IN INTEREST WAL-MART STORES , INC.'S OPPOSITION
14CITY OF SAN DIEGO, and DOES 1 through
TO PLAINTIFF AND PETITIONER'S EXPARTE APPLICATION FOR
15 100, TEMPORARY RESTRAINING ORDERTO SHOW CAUSE REGARDING
16 Defendants and Respondents. PRELIMINARY INJUNCTION
17 [Filed Concurrently With:
18 (1) Declaration of Paul McManus;(2) Request for Judicial Notice, and
19 (3) Evidentiary Objections to Declaration ofBruce Coons]
20IMPERIAL MARKET INVESTORS, LLC; Date: April 23, 2012
21 STEVE JULIUS CONSTRUCTION, INC.;and DOES 101 through 1,000,
Time: 9:00 a.m.Dept.: 66
22Defendants and Real Parties In
23 Interest.
24Real Party in Interest Wal-Mart Stores, Inc. hereby submits this brief in Opposition to
25Petitioner Coalition for Safe and Healthy Economic Progress ' ("CSHEP") Ex Parte Application
26for Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction.
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A77ORNEYS AT L AW WAL-MART STORES, INC.'S OPPOSITION TO TRO APPLICATIONLas ANC GLGS
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TABLE OF CONTENTS
Page
1. INTRODUCTION .............................................................................................................. 1
II. BACKGROUND ................................................................................................................ 3
A. The Project .............................................................................................................. 3
B. Factual History ........................................................................................................ 3
1. The City Issued a Conditional Use Permit in 2009 ..................................... 3
2. The City Adopted an Addendum in 2009 and Determined that theFarmers Market Building was NOT an Historical Resource ...................... 4
3. Wal-Mart Acquired a Leasehold Interest in the Building in 2011 .............. 4
4. The City Issued Ministerial Construction Approvals and Permits in2011 ............................................................................................................. 5
5. Construction Begins in Compliance with Plans and PermitsApproved by the City .................................................................................. 5
C. Procedural History .................................................................................................. 6
III. LEGAL STANDARD ......................................................................................................... 6
IV. THE TRO SHOULD BE DENIED BECAUSE PETITIONER IS NOT LIKELYTO PREVAIL ON THE MERITS ...................................................................................... 7
A. The Farmers Market Building is NOT a Historical Resource ................................. 7
B. The Project is in Compliance with All Approvals and Permits LawfullyIssued by the City .................................................................................................... 8
1. The Project Is Consistent With the City's 2009 CUP ................................. 8
2. A Neighborhood Development Permit is Not Required for TheseMinisterial Construction Permits .............................................................. 10
C. Petitioner's Lawsuit Challenging the 2009 CUP is Barred by the Statute ofLimitations in Government Code Section 65009 .................................................. 11
D. Petitioner Failed to Exhaust Its Administrative Remedies to Challenge the2009 CUP .............................................................................................................. 12
V. THE TRO SHOULD BE DENIED BECAUSE PETITIONER WILL NOTSUFFER ANY IRREPARABLE HARM ......................................................................... 13
A. Petitioner Will Not Suffer Any Irreparable Harm Because the FarmersMarket Building is NOT Being Demolished ........................................................ 13
B. Petitioner Unreasonably Delayed in Seeking Provisional Relief and HasInstead Created an Unreasonable Risk of Harm to All Involved .......................... 13
VI. THE BALANCE OF HARDSHIPS WEIGHS HEAVILY AGAINST ISSUANCEOF THE REQUESTED TRO ........................................................................................... 15
VII. CONCLUSION .................................................................................................................15
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TABLE OF AUTHORITIES
Page
CASES
Allen v. Pitchess,36 Cal.App. 3d 321 (1973) ...................................................................................................... 13
Biasca v. Superior Court of California,194 Cal. 366 (1924) ................................................................................................................ 13
Choice-In-Education League v. Los Angeles Unified School Dist.,17 Ca1.AppAth 415 (1993) ........................................................................................................ 7
City and County of San Francisco v. Market Street Ry. Co.,95 Cal.App.2d 648 (1950) ......................................................................................................... 6
Farmers Ins. Exchange v. Superior Court,2 CalAth 337 (1992) ............................................................................................................... 12
Jessen v. Keystone Savings & Loan Assn.,142 Cal.App.3d 454 (1983) ....................................................................................................... 7
O'Connell v. Sup. Ct. (Valenzuela),141 Cal.AppAth 1452 (2006) .................................................................................................... 7
Robbins v. Super. Ct,38 Cal.3d 199 (1985) .......................................................................................................... 7,15
Shoemaker v. County of Las Angeles,37 Cal.App.4th 618 (1995) ...................................................................................................... 15
Sierra Club v. San Joaquin Local Agency Formation Corn.21 CalAth 489 (1999) ............................................................................................................. 12
Tahoe Keys Prop. Owners Assn v. State Water Resources Control Bd.,23 Cal.AppAth 1459 (1994) ...................................................................................................... 7
STATUTES
California Code of Civil Procedure § 526 ....................................................................................... 6
California Code of Civil Procedure § 526(a)(2) ............................................................................. 7
California Code of Civil Procedure § 527 ....................................................................................... 6
California Code of Civil Procedure § 527(a) .................................................................................. 7
California Government Code § 65901 .......................................................................................... 11
California Public Resources Code § 21152 .................................................................................. 12
California Public Resources Code § 21167 ............................................................................ 11,12
San Diego Municipal Code § 112.0506- ..................................................................................... 12
San Diego Municipal Code § 126.0304 ........................................................................................ 12
San Diego Municipal Code § 143.0220 .................................................................................... 5,10
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TABLE OF AUTHORITIES(continued)
Page
San Diego Municipal Code § 143.0220(a) .................................................................................... 10
Government Code § 65009 ....................................................................................................... 2,11
Government Code § 65009(c)(1)(E) ............................................................................................. 12
OTHER AUTHORITIES
http://stopWal-Martnow.com ........................................................................................................ 14
http://www.copswiki.org/Occupy/OccupyS anDiegoEmailBlast2Ol2Marl 7 ............................... 14
Information Bulletin. 500, Minimum Standards far Substantial Conformance Review .................. 4
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1. INTRODUCTION
The sky is not falling - nor is the Farmers Market Building. Petitioner Coalition for Safe
and Healthy Economic Progress ("CSHEP" or "Petitioner") has its facts wrong and has
completely misapplied the law. Despite having been aware for months of Real Party in Interest
Wal-Mart Stores, Inc.'s ("Wal-Mart')' plans to open a 45,800 square foot Neighborhood Market
- in an area with a critical need for jobs and affordable retail options - Petitioner and its
supporters waited until construction began to rush into court (without notice) and falsely
proclaim an urgent need "to prevent the total destruction" of the Farmers Market Building located
at 2121 Imperial Avenue in the Sherman Heights area of San Diego.
Petitioner cannot - and does not in its papers - dispute that Wal-Mart's right to use the
Farmers Market Building as a retail and grocery store is expressly allowed under, and completely
consistent with, a Conditional Use Permit ("CUP") issued by Respondent City of San Diego
("City")' in 2009. That CUP has never been legally challenged, administratively or judicially,
until the belated filing of this lawsuit. It cannot be challenged now as a matter of law.
Instead, Petitioner seeks a Temporary Restraining Order ("TRO") from this Court by
challenging Wal-Mart' s right as a tenant to conduct construction and remodeling activities on
the structure itself. Petitioner's attack is premised on two faulty factual assertions: (1) that the
building is a "historic resource" that can never be touched unless a discretionary permitting
process is employed; and (2) that the "the building is being demolished at this very moment." As
explained below, Petitioner is simply wrong on both counts. Petitioner has failed to meet its high
burden of establishing the legal predicates necessary for this court to issue an ex parte TRO, and
therefore, its request for an ex parte TRO should be denied for these reasons.
First, Petitioner is not likely to prevail on the merits. Specifically, the Farmers Market
Building is not an historic resource . While the site (location) may have some historic value, the
1 Petitioner "neglected" to name Wal-Mart as a Real Party in Interest in its Verified Complaint for Declaratory andInjunctive Relief and Petition for Writ of Mandate (" Petition") despite the fact that Petitioner specifically attacksWal-Mart's construction activities in connection with this project. Based upon oral argument before the Court onApril 18, 2012, Wal-Mart presumes that Petitioner does not object to the Court deeming it a Real Party in Interest orotherwise formally allowing Wal-Mart to intervene.2 City is concurrently filing an Opposition to the TRO Application which include supporting Declarations of CathyWinterrowd ("Winterrowd Decl.") and Samuel Lindsey ("Lindsey Decl: ).
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City has extensively considered whether the building should be deemed "historic" (in a report
containing over 100+ pages). The City concluded in 2007 the building was not an historic
resource (even though the location was). No one ever challenged the City's determination in this
regard. Accordingly, based on the findings in this report, a CUP was issued in 2009 to the
building's owner authorizing the ministerial issuance of construction permits regarding the
building. The City's ministerial issuance of construction permits and approval of demolition
plans in late 2011 to remodel the interior of the building are consistent with the CUP and Wal-
Mart's construction activities are consistent with those permits.
Moreover, Petitioner failed to exhaust its administrative remedies to challenge the City's
determination in 2009 that the building was not a historic resource. As a result, Petitioner is
jurisdictionally barred from bringing this action. in addition, the 90-day statute of limitations in
Government Code § 65009 has long passed and expressly precludes Petitioner from judicially
challenging the CUP (and the ministerial permits issued thereunder), including its determination
that the building was not a historic resource.
Second, Petitioner will not suffer any irreparable harm whatsoever. The Farmers Market
Building is not being torn down . Pursuant to the approved plans, a portion of the exterior walls
have been opened to allow access for the equipment used for interior construction activities.
However, and as expressly illustrated by the demolition plans approved by the City, the
building's facade will in fact be preserved, restored and enhanced once the construction process is
completed. The photographs submitted by Petitioner in support of its application and the
misleading doomsday characterization of what they depict is completely at odds with the truth.
The photos depict a stage of construction that was in process before this TRO
application was filed - a process in which an opening had been temporarily created in the
structure to sufficiently accommodate the delivery and use of equipment to remodel the interior of
the building and extract the debris therefrom. The City has affirmed that the construction process
that had been in progress was consistent with the City approved permits and demolition plans.
Third, the balance of hardships weigh heavily against Petitioner. Rather than pursue this
TRO application before construction began, Petitioner unreasonably delayed and deliberately
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waited for the physical environment to change so that it could take photos and run into court
unannounced in the hopes of sneaking in a stealth TRO (without notice). Ironically, Petitioner's
misguided TRO Application actually threatens to interrupt that construction process from being
completed and creates an unreasonable risk of harm to the building and to all parties involved.
Such unclean hands should not be condoned nor rewarded. For these reasons, which are
discussed in detail below, the TRO Application should be denied in its entirety.
II. BACKGROUND
A. The Project
The project (the "Project") consists of the construction of a 45,800 square foot Wal-Mart
Neighborhood Market within the San Diego Farmers Market located on a 1.38-acre site at 2121
Imperial Avenue, between 21st Street, 22nd Street, and Commercial Street in the Southeastern
San Diego Community Plan Area (the "Site").
Wal-Mart Neighborhood Markets, like the one planned for the Site, offer a quick and
convenient shopping experience for customers who need groceries, pharmaceuticals, and other
household items. The proposed market will employ about 65 associates and will offer a wide
variety of products, including fresh produce, meat and dairy products, frozen foods, dry goods
and staples. Work on the Project is being performed by a woman-owned general contracting firm
and includes subcontractors from San Diego and San Diego County. It is anticipated that the
Project will create over 100 construction jobs.
B. Factual History
1. The City Issued a Conditional Use Permit in 2009
On or about July 8, 2009, the City approved Conditional Use Permit No. 604129 and Site
Development Permit No. 605528 (collectively, the "CUP"), which allowed for the continued use
of a 45,800-square foot large retail facility, including a market/grocery use. (See Request for
Judicial Notice ("RJN"), Exh. 2; Winterrowd Decl., T 3.)
Condition No. 4 of the CUP states that the "Permit is a covenant running with the subject
property and shall be binding upon the Owner/Permitee and any successor or successors, and the
interests of any successor shall be subject to each and every condition set out in this Permit and
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all referenced documents." (RJN, Exh. 2, p. 2.) Pursuant to Condition No. 8 of the CUP,
construction plans need not be identical to plans submitted in connection with the CUP, but must
substantially conform to them. (Id.) Pursuant to Information Bulletin 500, Minimum Standards
for Substantial Conformance Review, a substantial conformance determination may be made as
part of the construction permit process. (RJN, Exh. 7.)
2. The City Adopted an Addendum in 2009 and Determined that the FarmersMarket Building was NOT an Historical Resource
On July 8, 2009, the City prepared and adopted an Addendum to Negative Declaration
No. 99-0003 (the "Addendum") that assessed the environmental impacts of the proposed Project.
(Petition, Exh. B.) The Addendum contained a historic resource analysis of the Site that relied in
large part on the over 120 page "Historic Assessment and Department of Parks and Recreation
Primary Record" prepared by K.A. Crawford in June 2007 (the "DPR Record"). (RJN, Exh. 1.)
The CUP included the DPR Record's finding that:
"The [DPR Record] concluded that the property, not the building , would meet thecriteria for significance for local Criterion A (Event) as it reflects a special elementof the region's agricultural history."
(RJN, Exh. 2, Amendment to CUP, p. 2) (emphasis added).
According to the DPR Record, the Site, but not the building itself, met the criteria for
significance for local historical resource Criterion A because "[i]t reflects special elements of the
City's agricultural development." (RJN, Exh. 1, "Continuation Sheet" p. 8 of 8.) The DPR
Report concluded that the Building does not meet any of the City's other five historic resource
criteria , including that the building does not have local significance under Criterion C because of
the extensive alterations to the building that have taken place "which have eliminated any
distinctive characteristics of a type, period or method of construction." (Id., p. 6-8.)
3. Wal-Mart Acquired a Leasehold Interest in the Building in 2011
On March 8, 2011, Wal-Mart entered into a lease agreement with the landlord of the Site,
Defendant Imperial Market Investors, LLC (the "Lease"). The Lease provides Wal-Mart the
right to use and possess the 1.36-acre Site, together with an approximately 46,000 square foot
building located thereon. Wal-Mart took possession of the premises on February 9, 2012. The
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Lease has an initial term of 12 years, with options to extend the term for 10 consecutive periods.
4. The City Issued Ministerial Construction Approvals and Permits in 2011
On August 25, 2011, the property owner-Defendant Imperial Market Investors, LLC-
submitted applications for construction permits, which included building elevations, a demolition
plan, and other plans and specifications. (Winterrowd Decl., ¶ 4.) The City worked with the
applicant on revisions to the construction permits from August 2011 until November 2011.
(M., ¶ 5.) The final approved scope of work for the construction permit included the following
activity: (a) removal of a portion of the north wall facing Imperial Avenue and a small section of
west wall facing 21 st Street; (b) construction of a new masonry wall with an entrance at the north
elevation; (c) removal of the non-historic windows within the original openings and installation of
historically appropriate 3-over-3 windows, consistent with the historic photographs; (d) removal
of the non-historic recessed entries; (e) retention of the grain silo and exterior access stair, and
(f) demolition of the floor and roof. (Id., ¶ 5-6, Exh. A.)
On November 16, 2011, the Project elevations received an approval stamp from the City
reflecting the Site's historic character stating: "Historical Resources Approval: This parcel
contains a potential significant historical resource. Approval as per SDMC Sec. 143.0220 for this
scope of work only. Historic review is required for plan changes ." (RJN, Exh. 6) (emphasis
added). On or about December 22, 2011, Building Permits for construction were issued and paid
for. (RJN, Exhs. 3-4.) Also in December 2011, the City approved the Project's demolition plan
and permits in connection therewith. (RJN, Exh. 3; Lindsey Decl., Exhs. A-B.)
5. Construction Begins in Compliance with Plans and Permits Approved bythe City
Construction began consistent with the scope of the City approved permits as outlined
above. The Farmers Market Building consists of four separate structures, each separated by load
bearing walls. (See Declaration of Paul McManus ("McManus Decl."), ¶ 4) The City approved
demolition plan and elevations called for the removal of the internal load-bearing walls to
consolidate these four areas into a single structure under one roof with a central "opening" into
the building. The exterior walls and character of the existing elevations will remain largely
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untouched. (Id.)
In connection with the internal demolition, some portions of exterior walls are required to
be demolished, such as unreinforced clay tile masonry walls at the north and west elevations,
which were not self-supporting and posed a threat to public safety, particularly if a seismic event
were to occur. (Id. at 15.) Following removal of the unreinforced clay masonry, the walls will
he reconstructed in their original locations, using new material in order to comply with current
Building Code requirements . Wherever possible, existing brick walls along the exterior
elevations are to be patched and repaired, and will remain in place. (Id. at ¶ 6.) This process
began but was stayed, as set forth below.
C. Procedural Histor
After the City approved the CUP in 2009, no interested party applied for an administrative
appeal or initiated litigation. Yet on April 18, 2012, almost three years after the City approved
the CUP and with no notice to Wal-Mart, Petitioner filed the present lawsuit and sought a TRO
from this Court to halt all Project construction. Petitioner waited until after construction began to
seek its TRO from the Court and did not serve Wal-Mart with its papers until after the Court
continued the hearing to April 23, 2012 for further briefing.
IIL LEGAL STANDARD
A temporary restraining order is permitted in the same situations as a preliminary
injunction. See Code of Civ. Proc. §§ 526, 527. Petitioner bears the burden of demonstrating
that the issuance of an injunction is warranted. The issuance of an injunction "is an extraordinary
power, and is to be exercised always with great caution and in those cases only where it fairly
appears upon all the papers presented, before such injunction is granted, that the plaintiff will
suffer irreparable injury if it be not issued, or that it is necessary to preserve the estates of the
parties or some sufficient cause showing that need of hasty action exists." City and County of
San Francisco v. Market Street Ry. Co., 95 Cal.App.2d 648, 655 (1950) (citations omitted). Code
of Civil Procedure § 527, which contains California's basic guidelines regarding injunctions,
provides that an injunction shall be issued before trial only if "... sufficient grounds exist
therefor." Code of Civ. Proc. § 527(a).
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It is well-settled that an injunction may not issue unless the applicant can show both (1) a
likelihood of success on the merits, and (2) that the applicant will be irreparably injured unless
the injunction issues. Code Civ. Proc. § 526(x)(2); see also, Robbins v. Super. Ct, 38 Cal.3d 199,
206 (1985) (stating the same). Here, a "significant" showing of irreparable injury is required
because there is a "general rule against enjoining public officers or agencies from performing
their duties," which is what Petitioner is seeking. Tahoe Keys Prop. Owners Ass'n v. State Water
Resources Control Bd., 23 Cal.AppAth 1459, 1471 (1994); O'Connell v. Sup. Ct. (Valenzuela),
141 Cal.App.4th 1452, 1464 (2006). Because Petitioner cannot meet its higher burden of proving
the necessary elements for the issuance of a TRO, its TRO Application should be denied.
IV. THE TRO SHOULD BE DENIED BECAUSE PETITIONER IS NOT LIKELY TOPREVAIL ON THE MERITS
It is well settled that an injunction should not issue when the party seeking the injunction
will not succeed on the merits, even though its issuance might prevent irreparable harm, because
"there is no justification in delaying that harm where, although irreparable, it is also inevitable."
Choice-In-Education League v. Los Angeles Unified School Dist., 17 Cal.AppAth 415, 422
(1993); ,lessen v. Keystone Savings & Loan Assn., 142 Cal.App.3d 454, 459 (1983). The
Petitioner argues that it is likely to prevail on the merits because according to the Petitioner: (1)
the "building site is regarded by the City as an historical resource" and the allegedly required
"Process 4" permit for demolition was not obtained; (2) the CUP and accompanying
environmental reports allegedly stated that there will be no demolition or alteration of the
building facade; and (3) there is allegedly nothing in the environmental reports for the Project to
indicate that the City considered air-pollution impacts due to alleged airborne pollutants.
(Petition, 3:20 - 4:13) Petitioner is wrong for the reasons discussed below.
A. The Farmers Market Buildin is NOT a Historical Resource
Relying on nothing more than the Declaration of Bruce Coons, which contains no expert
qualifications whatsoever nor any factual foundation for any of the conclusory legal arguments
made therein,3 Petitioner contends that the impetus for its TRO Application is to save a historical
3 Evidentiary Objections to the Declaration of Bruce Coons are being concurrently filed herewith, His testimony is
completely inadmissible.
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resource from being demolished. However, the Farmers Market Building is not a historical
resource. The DPR Record prepared in 2007 conclusively determined that the Farmers Market
Building is not a historical resource-only the site of the building has historical significance.
(RJN, Exh. 1, "Continuation Sheet" p. 8 of 8.) In 2009, the CUP, relying on the DPR Record,
determined, that "the property, not the building , ... meet the criteria for local Criterion A (Event)
as it reflects a special element of the region's agricultural history." (RJN, Exh. 2, Amendment, p.
2) (emphasis added). Among other things, the DPR Record found that the building did not meet
the following historic resource criteria:
The San Diego Farmers' Market building is not significant under local CriterionB, as no persons or events of significance were associated with the property. TheSan Diego Farmers' Market building is not significant under local Criterion C,due to the extensive alterations that have taken place, which have eliminated anydistinctive characteristics of a type, period or method of construction. The SanDiego Farmers' Market building is not significant under local Criterion D, as itsarchitect is unknown. The San Diego Farmers' Market building is not significantunder local Criterion E or F, as it is not listed on the California or NationalRegister and is not part of an established historical district.
(1d., p. 6-8 of 8) (emphasis added). Thus, the underpinnings of Petitioner's entire TRO
Application are inaccurate.
B. The Project is in Compliance with All Approvals and Permits Lawfully Issued
Cityby the
Petitioner's representation that Wal-Mart is demolishing the existing Farmers Market
Building in order to construct a new building in its place is false. (Petition, 11:8-10). As
reflected in the approved plans and elevations, Wal-Mart intends to retain the vast majority of the
Farmers Market Building's exterior walls and building elements. Wal-Mart is, however,
conducting necessary interior rehabilitation to convert the existing structure of the Farmers
Market Building into a modern grocery store, pursuant to City approval.
1. The Project Is Consistent With the City's 2009 CUP
The CUP expressly authorizes use of the Site for the operation of "ail existing large
retail facility including a market/grocery use and related retail activities, for a 25 year period. "
(RJN Exh. 2, p. 1.) The CUP expressly provides that it is a covenant running with the land and
extends the permitted uses to all successors. (1d., p.2.) The Project unequivocally contemplates
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the identical use authorized by the CUP. Despite Petitioner counsel ' s verbal representations to
the contrary at the April 18 hearing, Petitioner cannot , and does not, challenge Wal-Mart' s right
to use in its papers.
All construction to date on the Site has been in accordance with the permits issued by the
City, which the City acknowledges. The Development Services Department and Neighborhood
Code Compliance staff visited the Site April 18, 2012 to respond to community concerns that
demolition was being done without a permit . The City's copy of the stamped , approved plans
was compared with the plans on Site and they were found to be identical . (Winterrowd Decl.,
1 9.) The work being performed through April 18, 2012 was in compliance with the stamped
approved plans and specifications , and well within the scope of the work authorized. The
demolished section of exterior wall adjacent to Imperial Avenue was measured and it was within
the dimensions as noted on the approved plans . (Id., ¶ 10; Lindsey Decl., ¶ 5.) The City further
acknowledges that the required permits have been issued and the work is being legally performed.
The City, including the Department of Building and Safety, continues to monitor and ensure that
construction activities are proceeding in accordance with all applicable building permits, plans,
specifications and City Code requirements . The City also retains the necessary enforcement
authority should the work deviate from such parameters . (Winterrowd, ¶ 11; Lindsey Decl. ^ 6.)
The demolition activities and progress depicted in the photographs attached as Exhibit A
to the Declaration of Bruce Coons filed in support of Petitioner 's TRO Application are, in fact,
consistent with the demolition plan approved by the City. (McManus Decl., 1 8. ) Because
existing internal load bearing walls are being demolished to create an open retail floor area, and
because the existing openings into the building are small , the debris from those walls is being
extracted through openings created along the northern and western elevation of the Farmers
Market Building . (Id. at ¶ 9 .) The photographs attached to Mr. Coon' s declaration depict an
opening which was made at the northern elevation at the location of the former entrance, which
was not only necessary to remove debris from the interior of the building but also necessary to get
the equipment needed for the demolition inside the building. (Id.) As indicated above, once the
interior demolition is complete , the opening will be replaced with a brick veneer wall.
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This limited demolition has been full and finally a roved b the Cit . The Demolition
Plan (Sheet D1, approved by the City on December 22, 2011) clearly identifies that the portion of
the building depicted in the photographs will be removed. (Id., Exh. A.) The demolition shown
in the photographs is also consistent with the scope of demolition depicted in Demolition
Elevation Sheet D2, which was also approved by the City on December 22, 2011. (Id., Exh. B.)
Specifically, the demolished area depicted in Exhibit A to Mr. Coon's declaration was annotated
on Sheet D2 with one of two notes: DE02, "remove existing wall and footing"; or DE10,
"remove entire roof structure." Therefore, all demolition activities shown in the photographs are
in accordance with demolition plans that have been approved by the City.
2. A Neighborhood Development Permit is Not Required for TheseMinisterial Construction Permits
Contrary to Petitioner's claims, the Project did not require either a Neighborhood
Development Permit or an additional Site Development Permit (collectively, " Development
Permit"). On November 16, 2011, the Project's elevations, received an approval stamp, stating:
"Historical Resources Approval: This parcel contains a potential significant historical resource.
Approval as per SDMC Sec. 143.0220 for this scope of work only. Historic review is required for
plan changes." (RJN, Exh. 6.) As explained in the Addendum, because of the historic nature of
the Site, historic review was nevertheless required to ensure that any exterior modifications met
the Secretary of Interior Standards and Guidelines for Treatment of Historic Properties ("SOI
Standards"). San Diego Municipal Code ("SDMC") § 143.0220(a) provides that development
activities are exempt from the requirement to obtain a Development Permit when such
development proposes minor alterations or improvements that "will enhance, restore, maintain,
repair, or allow adaptive reuse of the resource, and which will not adversely affect the special
character or special historical, architectural, archaeological, or cultural value of the resource when
all feasible measures to protect and preserve the historical resource are included in the
development proposal, consistent with the [SO1 Standards]."
The Project is exempt from the Development Permit requirement pursuant to Section
143.0220(a). First, the Project proposes only minor alterations and improvements to the Farmers
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Market Building (e.g., demolition of the floor and roof, replacement of windows) in order to reuse
the building as a modern grocery store. The character defining features of the Farmers Market
Building will be retained, including the cast, south and west walls and approximately 1/3 of the
north wall, as well as delivery doors and the large grain silo. (Winterrowd Decl., 1 7.)
Second, the demolition plan and elevations approved by the City provided that the
existing exterior elevations would largely be preserved or restored, consistent with the SOI
Standards. (Winterrowd Decl., ¶ 5.) For example, the silo/grain elevator tower on the east
elevation will remain in place, and windows will be replaced with historically-appropriate 3-over-
3 double or single hung wood frame and sash windows, consistent with the historic photographs.
(Id.) As a result of these and other Project features, on November 16, 2011, the City found that
"[t]he project as revised is consistent with the U.S. Secretary of the Interior's Standards."
C. Petitioner 's Lawsuit Challen in the 2009 CUP is Barred b the Statute ofLimitations in Government Code Section 65009
The Petition's challenge to the Project's building and demolition permits is tantamount to
a challenge to the issuance of the CUP, since the Project's building/demolition permits were
issued pursuant thereto. The Petition, however, is untimely and therefore barred by the applicable
statutes of limitations relating to both the CUP and its Addendum.
To begin, California Government Code § 65009 provides in pertinent part:
(c)(1) Except as provided in subdivision (d), no action or proceeding shall bemaintained in any of the following cases by any person unless the action orproceeding is commenced and service is made on the legislative body within 90days after the legislative body's decision:
(E) To attack, review, set aside, void, or annul any decision on the matters listed inSections 65901 and 65903, or to determine the reasonableness , legality, orvalidity of any condition attached to a variance, conditional use permit, or anyother permit. (Emphasis added.)
Conditional use permits are listed in California Government Code § 65901, and are therefore
subject to this 90 day statute of limitations.4
4 Further, California Public Resources Code § 21167, which is applicable to challenges to the Addendum under theCalifornia Environmental Quality Act ("CEQA"), provides in pertinent part:
An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a
public agency on the grounds of noncompliance with this division shall be cornmenced as follows:
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Here, the CUP was approved on July 8, 2009. The Petition, Petitioner's first challenge to
the CUP, was filed on April 18, 2012-nearly three years after issuance of the CUP and clearly
outside the applicable statutes of limitations set forth in Government Code § 65009(c)(1)(E).
D. Petitioner Failed to Exhaust Its Administrative Remedies to Challenge the2009 CUP
"The exhaustion [of administrative remedies] doctrine is principally grounded on concerns
favoring administrative autonomy (i.e., courts should not interfere with an agency determination
until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts
should decline to intervene in an administrative dispute unless absolutely necessary)." Farmers
Ins. Exchange v. Superior Court, 2 CalAth 377, 391 (1992). "Even where the administrative
remedy may not resolve all issues or provide the precise relief requested by a plaintiff, the
exhaustion doctrine is still viewed with favor `because it facilitates the development of a
complete record that draws on administrative expertise and promotes judicial efficiency."' Sierra
Club v. San Joaquin Local Agency Formation Com. 21 CalAth 489, 501 (1999).
Here, San Diego Municipal Code § 126.0304 provides that a conditional use permit issued
pursuant to a "Process Three" decision process, like the CUP, "may be appealed to the Planning
Commission in accordance with Section 112.0506." San Diego Mun. Code §126.0304. San
Diego Municipal Code § 112.0506 provides that an "applicant" or an "interested person" may
appeal a Process Three decision by filing an application with the City Manager no later than 10
business days after the date of the Hearing Officer's decision. The CUP was approved by the
Hearing Officer of the City of San Diego on July 8, 2009. (RJN, Exh. 2, p. 5.) Petitioner never
availed itself of the appeal process provided by San Diego Municipal Code § 112.0506.
(a) An action or proceeding alleging that a public agency is carrying out or has approved a project that mayhave a significant effect on the environment without having determined whether the project may have a
significant effect on the environment shall be commenced within 180 days from the date of the public
agency's decision to carry out or approve the project , or, if a project is undertaken without a formal
decision by the public agency, within 180 days from the date of commencement of the project. (Emphasis
added.)
The Petition is not timely under California Public Resources Code § 21167, as challenges to the adequacy of theAddendum's historical resource analysis were required to be made by January 4, 2010 (i.e., 180 days from the July 8,2009 CUP approval). Notably, the applicability of California Public Resources Code § 21167 conservatively
assumes that the City did not file a Notice of Determination following approval of the Addendum, which filing would
result in a 30 (rather than 180) day statute of limitations. California Public Resources Code §§ 21152, 21167.
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Accordingly, Petitioner has failed to exhaust its administrative remedies and this Court is without
jurisdiction over the claims presented herein.5
V. THE TRO SHOULD BE DENIED BECAUSE PETITIONER WILL NOT SUFFERANY IRREPARABLE HARM
A. Petitioner Will Not Suffer An Irre parable Harm Because the FarmersMarket Buildin g is NOT Bein Demolished
The crux of the purported irreparable harm alleged in Petitioner's TRO Application is
that, without the issuance of a TRO, a "unique, one-of-a-kind historical resource" will be torn
down. (Application, 4:17-18) But as fully explained above, nothing could be farther from the
truth. Wal-Mart is not tearing down the Farmers Market Building. Rather, Wal-Mart has
obtained all permits and approvals for necessary interior rehabilitation to convert the existing
structure of the Farmers Market Building into a modern grocery store. The debris complained of
by Petitioner is nothing more than the remnants of demolition from the interior of the building
that was extracted. (McManus Deel., J1T 8-9) The deconstructed portions of exterior walls simply
serve to allow demolition machinery into the building and debris out. (Id., 115.) Those exterior
walls will be restored once internal demolition is complete, pursuant to the precise demolition
plans approved by the City. (Id., ¶ 6.)
Given the limited scope of the ongoing construction, all of which was approved by the
City, and the fact the Project is not demolishing the building, as Petitioner claims, Petitioner has
failed to demonstrate that irreparable harm will result if an injunction is not granted.
B. Petitioner Unreasonably Delayed in Seeking Provisional Relief and HasInstead Created an Unreasonable Risk of Harm to All Involved.
The CUP was issued on July 8, 2009. (RJN, Exh. 2, p. 6) Petitioner did not seek an
administrative appeal of the CUP or file suit to invalidate or otherwise challenge the CUP. Of the
5 The trial court has inherent equitable power over provisional relief and, in the exercise of its sound discretion, mayrequire the posting of an undertaking bond to protect against the impact of a temporary restraining order if it were
found to have been improperly issued. Xlen v. Pitchess, 36 Cal.App. 3d 321, 329-30 (1973); Biasca v, Superior
Court of California, 194 Cal. 366, 367 (1924). For the reasons stated herein, Petitioner is not likely to prevail on the
merits. However, if the Court is inclined to issue a temporary restraining order, the Court should exercise itsdiscretion to require Petitioner to post a bond to cover Wal-Mart's damages in the interim, which will necessarily
include, among other things, damages associated with construction delays.
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three construction permits issued by the City for the Project, two were issued on December 22,
2011 and one permit was issued on January 30, 2012. (RJN, Exh. 3) Again, Petitioner did not
file suit or otherwise challenge the issuance of the permits. In addition, a demolition plan and
elevation drawings were approved by the City on December 22, 2011. (McManus Decl., Exh. A-
B.) Petitioner did not file suit or otherwise challenge the issuance of the City's approval of the
demolition plan or elevation drawings. For the past several weeks, various labor and community
groups have attempted to organize opposition to the Project.6 Yet, Petitioner took no action.
Instead, Petitioner unreasonably delayed and deliberately waited to seek relief until after
construction of the Project began. Now Petitioner requests that this Court upend the status qua
and issue and order stopping all construction at the Site. Petitioner's delay has created a
substantial risk of actual harm to Wal-Mart, the public, and the building itself.
Specifically, because the portions of the exterior walls have already been opened to allow
access for the demolition equipment used on the interior of the building and the removal of debris
from the interior of the building, an order preventing further construction related activities at the
Site would only increase the risk of irreparable harm to the building. In its current state, the
building is not sealed and is exposed to weather and other natural elements. Stopping all
construction related activities that had been in progress (the status quo before this application was
filed) would pose a threat to human health and safety, and could constitute an attractive nuisance,
as the debris from the interior demolition of the building remain on the Site. In addition, in its
current state, the building's north and west elevations, which are not self-supporting, still pose a
threat to public safety, particularly if a seismic event were to occur.
Allowing construction to continue and be completed in accordance with the CUP and
applicable building permits would eliminate this potential harm because following demolition of
the interior portions of the building and removal of the unreinforced clay masonry, the exterior
walls will be reconstructed in their original locations using new material in order to comply with
6 For example, as early as March 17, 2012, an Occupy San Diego email blast announced that at 10:00 am "Stop Wal-Mart from moving into Sherman Heights, by attending and voicing your views at the Sherrnan/Logan NeighborhoodCouncil Meeting at Sherman Elementary School at J and 22nd San Diego." See http://stopWal-Martnow.com and
http://www. copswiki.org/Occupy/OccupySanDiegoEmailBlast2O l2Mar 17.
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current Building Code requirements and wherever possible, existing brick walls along the exterior
elevations will be patched and repaired, and will remain in place. (See, e.g., McManus Decl.,
6.) In short, Petitioner's unreasonable delay has resulted in undue prejudice to everyone
concerned with the Project other than Petitioner
VI. THE BALANCE OF HARDSHIPS WEIGHS HEAVILY AGAINST ISSUANCE OFTHE REQUESTED TRO.
As set forth above, in addition to establishing irreparable harm and the likelihood of
success on the merits, the Petitioner must show that the balance of hardships weighs in
Petitioner's favor. In balancing the hardships, the Court must determine: (1) whether the
Petitioner is likely to suffer greater injury from denial of the injunction than defendants are likely
to suffer if it is granted, Shoemaker v. County of Los Angeles, 37 Cal.App.4th 618, 633 (1995),
and (2) whether there is a reasonable probability that Petitioner will prevail on the merits.
Robbins v. Superior Court (County of Sacratnento), supra, 38 Cal.3d at 206. Both of these
factors weigh heavily against the issuance of the requested TRO.
Petitioner will suffer no harm if the TRO is denied (since the exterior facades of the
building will be restored, and in some areas improved, once internal construction activities are
completed). Meanwhile, the hazard created by any further interruption to the construction
process will continue if a TRO is granted despite the fact that all necessary permits and approvals
for the Project have been obtained and all construction and demolition activities related thereto
are in compliance with all such permits and approvals. The balance of hardships clearly weighs
heavily against Petitioner. The TRO should be denied.
VII. CONCLUSION.
For the reasons set forth above, Wal-Mart respectfully requests the Court to deny
Petitioner's TRO Application in its entirety.
Dated: April 20, 2012
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Los ANGEL E.,
PROOF OF SERVICE
I, Terrie Auzenne, declare as follows:
I am employed in Los Angeles County, Los Angeles, California. I am over the ageof eighteen years and not a party to this action. My business address is MANATT, PHELPS &PHILLIPS, LLP, 11355 West Olympic Boulevard, Los Angeles, California 90064-1 6 1 4. OnApril 20, 2012, I served the within:
REAL PARTY IN INTEREST WAL-MART STORES, INC.'S OPPOSITION TOPLAINTIFF AND PETITIONER'S EX PARTS APPLICATION FOR TEMPORARYRESTRAINING ORDER TO SHOW CAUSE REGARDING PRELIMINARYINJUNCTION
on the interested parties in this action addressed as follows:
Cory J. Briggs, Esq.Mekaela M. Gladden, Esq.BRIGGS LAW CORPORATION99 East "C" Street, Suite 111Upland, California 91786Phone: (909) 949-7115Fax: (909) 949-7121Email: cory@brig_2slawcorp.comEmail: [email protected]
(BY MAIL) By placing such document(s) in a sealed envelope, with postagethereon fully prepaid for first class mail, for collection and mailing at Manatt,Phelps & Phillips, LLP, Los Angeles, California following ordinary businesspractice. I am readily familiar with the practice at Manatt, Phelps & Phillips, LLPfor collection and processing of correspondence for mailing with the United StatesPostal Service, said practice being that in the ordinary course of business,correspondence is deposited in the United States Postal Service the same day as itis placed for collection.
0
0
(BY OVERNIGHT MAIL) By placing such document(s) in a sealed envelope,for collection and overnight mailing at Manatt, Phelps & Phillips, LLP, LosAngeles, California following ordinary business practice. I am readily familiarwith the practice at Manatt, Phelps & Phillips, LLP for collection and processingof overnight service mailing, said practice being that in the ordinary course ofbusiness, correspondence is deposited with the overnight messenger service,Federal Express, for delivery as addressed.
(BY ELECTRONIC MAIL) By transmitting such document(s) electronicallyfrom the e-mail address, [email protected] at Manatt, Phelps & Phillips, LLP,Los Angeles, California, to the person(s) at the electronic mail addresses listedabove. The transmission was reported as complete and without error.
I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct and that this declaration was executed on April 20, 2012, at LosAngeles, California.362089607.1
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