Atascadero Walmart civil suit hinges on disclosure

Anti-project group says city did not release air quality report on time; city disputes that

tstrickland@thetribunenews.comMarch 19, 2013 

Judge Jac A. Crawford questions attorneys in his Paso Robles courtroom on Tuesday, March 19, as a civil lawsuit gets under way concerning the environmental impacts of Walmart in Atascadero.

DAVID MIDDLECAMP — dmiddlecamp@thetribunenews.com

Almost seven years of contentious debate on whether a Walmart store is good for Atascadero was boiled down in civil court Tuesday to whether the city properly made a two-page report detailing air quality available to the public.

A citizens group that has opposed bringing a Walmart-anchored shopping center to Atascadero’s north side argued the city violated state environmental laws by failing to timely disclose the document.

The city, meanwhile, said it acted within the law.

In June, the Atascadero City Council approved Walmart and an adjacent shopping center called The Annex on parcels off El Camino Real and Del Rio Road.

San Luis Obispo Superior Court Judge Jac Crawford heard the case in a full afternoon of arguments at the court’s Paso Robles branch.

Much of the discussion was centered on a series of dense reports and complicated issues surrounding public access, state environmental law and traffic issues associated with the new shopping centers.

Construction on the sites has since been held up in litigation after a lawsuit was filed in August by Save Atascadero, a group spearheaded by residents Tom Comar and Lee Perkins.

Crawford is expected to make a tentative ruling in the upcoming weeks, though a specific timeline wasn’t given.

Arguments came from Save Atascadero’s attorney, San Francisco-based M.R. Wolfe & Associates’ John Farrow, as well as rebuttal from City Attorney Brian Pierik.

Although other arguments were presented, Farrow and Pierik mainly focused on a two-page risk assessment about potential cancer-causing air toxins that the centers’ added car and delivery truck emissions could bring.

The assessment was done by the San Luis Obispo County Air Pollution Control District during a comment phase of an environment review report the City Council later used to vet the project before approving it.

The assessment found that the development’s potential toxic emissions would be below a benchmark in the state’s air quality standards.

The assessment, known as a Type B assessment, supplemented other air studies already in the report.

The pollution control district didn’t submit its assessment into the official report, after the environmental review was printed, because it classified its findings as less-than-significant, Pierik said.

“What is it about these two pages that are so magical, so critical that it would require recirculation of the EIR (environmental review report),” Pierik asked as he held up the pages.

Because the assessment was referenced in the environmental report, it should have been made available for residents to comment on, Farrow argued.

Not doing so “puts the public in a tremendous disadvantage,” he said, adding that the city originally said the public couldn’t have the document.

Pierik said the document was turned over to the public at their request but it took time. While the city had to get it from the pollution control district, the delay wasn’t intended as a denial, he said.

“I would like to see if the petitioner has anywhere in the record that the city said ‘You can’t have it,’ ” Pierik added.

Farrow then argued that city staff didn’t properly hand over that assessment in time for residents to comment on it.

“Council asked what’s so magical about those two pages. I’ll tell you what was magical about them … they (the city) didn’t give us the information we asked for,” Farrow said, referencing the time delay.

Wal-Mart Stores Inc., named a party of interest in the case, also had representing attorneys who presented arguments against Save Atascadero. Representation for The Annex was not present. The Annex is partially owned by The Rottman Group and Montecito Bank and Trust.

Save Atascadero is seeking to stop the project so further study of the impacts can be done. It is also seeking attorney’s fees.

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