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If at first it fails, the City of San Diego will try, try again to get on the right side of the law over the new Walmart in Sherman Heights.

On October 8, councilmembers voted to appeal San Diego Superior Court judge Timothy Taylor's decision that found the city failed to explore potential impacts that a new Walmart would have on the surrounding community.

Six council members voted in favor of filing what will likely be a costly appeal in the case brought by the Coalition for Safe and Healthy Economic Progress in April 2012. The motion was brought forward by councilmember Kevin Faulconer. David Alvarez and Marti Emerald were the only two officials to vote against filing the appeal.

It is yet another example of Development Services staff members issuing over-the-counter permits instead of forcing the developer — a retail conglomerate, in this instance — to conduct a full environmental impact report and gain approval from local planning groups and the city's planning commission. Similar cases that have popped up in the past year include the total rebuild of a Jack in the Box in North Park and the construction of a massive dormitory-like building in Rolando.

This from Judge Taylor's August 8 ruling:

Consequently, there was no analysis of the impact of the removal of one of the two "towers;" there was no analysis of the impact (if any) of the partial removal (and subsequent rebuilding) of some of the walls; there was no analysis of the impact (if any) of the change in the signage; there was no analysis of the impact of the change in use from a "Farmer's Market" with sporadic hours to a full time, full service modern supermarket; and there was no analysis of the changes in the Project's traffic and circulation impacts between what was contemplated in 2009 and that which was contemplated in 2011 (and is now a reality).

The court rejects [Walmart's] continued refrain that the 2011 plan submittal contemplated only minor "tenant improvements." The building official who was responsible for reviewing the late 2011 application would have been well within her or his rights had s/he determined that there was no ministerial duty in 2011 to issue a building permit, because the 2011 plans differed significantly from anything contemplated in the 2009 SDP and CUP.

Despite ruling in favor of those, Judge Taylor decided against ordering the company to shut down the store or go back and mitigate any potential impacts.

...[It] is simply too late to afford the petitioner the relief it seeks. The rebuilding is over and the supermarket is open; nothing would be gained (and potentially much lost) by ordering the City to set aside project approvals at this late date.

Cory Briggs, the attorney representing the group of Sherman Heights residents, said his clients have agreed to delay talks of attorneys fees until after the appeal is heard. In the meantime, those fees, paid for by tax dollars, will increase.

For more on the North Park Jack in the Box click on the following links:

Or for a complete list of article go to and click on "in the media."

(corrected 11/6/13, 11 a.m.)

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Dorian Hargrove Oct. 31, 2013 @ 10:28 a.m.

Correction: It was councilmember Sherri Lightner and David Alvarez who voted against filing an appeal.Councilmember Marti Emerald was absent. I apologize for the mistake.-dH


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