The Law

Refined Design by Ron Davis Stiff opposition to changes in the approved construction plans of a California shopping center has not prevented approval of the project. That’s because those changes involve only the shopping center’s design, not the size. The shopping center is set for development in the city of Madera. And the developers have already gained approval of their plans from local authorities. Such approval meant the preparation of an environmental-impact report that shows compliance with government standards. The initial building plans won local approval without much controversy. But afterwards, the developers decided to change the center’s design to accommodate the needs of a Super Target tenant. Instead of the largest tenant space of 125,000 square feet, the new design allowed Target 198,484 square feet, plus an additional 10,900 square feet for a “garden center.” That meant reduction changes to the size of some other retailers’ spaces so that the total square footage of the shopping center would remain the same. The Madera development director readily agreed to the developers’ revised plans. And the city prepared an “addendum” to the already-approved design of the shopping center. That addendum stated that “there are no substantial changes proposed in the project which would require major revisions of the previous environmental report….” A challenge to the revised plans put the project on hold. One or more local citizens had sued, contending that the city of Madera had violated the state’s environmental-quality regulations by approving the developers’ new plans without preparing another environmental-impact report. The basis of that argument: that the addition of a tenant such as a Super Target to a shopping center automatically requires an analysis of the potential urban-decay effects of the change. The city responded that because the size of the planned shopping center would remain the same after the interior changes, there was no need to prepare a new environmental-impact report. In fact, such building plans require subsequent environmental-impact approval only if “substantial” changes to those plans are later made. A California court ruled that the addition of the Super Target to the development of the shopping center does not require a new environmental-impact analysis. Opponents of the shopping center’s plans appealed that ruling. A California appellate court agreed with the lower court, explaining, “There was no misdescription of the size of this project and no expert evidence or any other evidence that approval of the project with the refined site plan might lead to urban decay.” (Malom v. City of Madera, 2010 WL 1053105 [Cal.App. 5 Dist.]) Decision: April 2010 Published: April 2010