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Whatever Happened to Mel Cottons? : Berliner Attorneys Successfully Defend Project Against Misuse of CEQA

August 16, 2018 | Andrew L. Faber
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Whatever Happened to Mel Cottons?

Remember the Mel Cottons Sporting Goods Store? This 50+ year San Jose landmark on San Carlos Street closed a couple of years ago. The site was bought by our client, who obtained approvals from the City of San Jose to develop a Smart & Final Extra! Grocery Store on the site.

Sounds like pretty routine urban redevelopment, doesn’t it? Well, the only problem is that Smart & Final Extra! is a non-union grocery store. Three workers at the unionized Safeway store across the street filed suit under the California Environmental Quality Act (“CEQA”) to block the development. This a pretty typical CEQA suit these days. When we started doing CEQA work in the 1970s, most plaintiffs were environmental organizations or neighborhood groups that were sincerely trying to preserve environmental values. Nowadays, most plaintiffs are either NIMBYs (“Not In My Backyard”) opponents, unions opposed to non-union construction projects or non-union businesses, or businesses trying to keep out competition.

San Jose had complied with CEQA in approving the site, using the “infill exemption.” This exemption is available for relatively small projects in urban areas that have no unusual circumstances or unusual environmental issues. The Smart & Final Extra! Grocery Store is 30,000 sq.ft. in size, replacing the Mel Cottons Store of equal size on a major street in an urban area, so the infill exemption was ideal for this project.

Nonetheless, the opponents hired a lawyer who hired an air quality expert and a traffic expert to oppose the project. As is typical, these experts wrote letters criticizing the reports upon which the City had relied (which had been prepared by suitable consultants hired by the EIR consultant, David J. Powers &Associates).

The case was extensively briefed and argued, and tried to Judge Helen Williams in April 2018. We defended the lawsuit on behalf of the developer in cooperation with the City Attorney’s office representing the City

The trial lasted several hours and featured very active questioning by the Judge. When I mentioned that I was sorry to see Mel Cottons go, since I remember going there when I first came to San Jose in 1972, she responded that she had the same memory from a few years earlier.

Judge Williams just issued her decision 100% in favor of the City and developer. She found that the plaintiffs had failed to exhaust their administrative remedies by objecting in front of the City at the right time (they had essentially attempted to “sandbag” the City by submitting their objections at the last minute), and on merits, found that the City’s use of the infill exemption was supported by substantial evidence on the record.

Often the goal of such a lawsuit is to delay development, and even a baseless lawsuit can have that effect, as lenders may be reluctant to proceed while a lawsuit is pending. In this case, however, the client went ahead with the construction in the absence of any court order preventing him from doing so, and by the time the opinion was rendered, the store was almost ready to open.

It’s unfortunate that CEQA is so commonly misused in circumstances like this case. Fortunately, although consumers will no longer be able to buy camping and outdoor equipment at Mel Cottons, they will now have another choice for their grocery shopping on San Carlos Street as a result of the successful defense of this action.

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