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The rise of the Wal-Mart super center has brought more than just “everyday low prices” to neighborhoods across the country — it’s also delivered a wave of “big box” litigation. Nearly every state has seen legal battles over local community ordinances to keep so-called big-box retailers — most notably Wal-Mart — from erecting super centers. The latest legal confrontation is under way in California, where Wal-Mart Stores Inc. has announced plans to open 40 super centers. “We’re well along the way,” said WalMart spokesman Peter Kanelos. But residents and city planners in the city of Turlock, in Central California, have rejected Wal-Mart’s attempts to break ground. In response, Wal-Mart has filed the state’s first lawsuit in Stanislaus County, along with a companion federal action, to assert its rights to build in Turlock. Wal-Mart Stores v. Turlock, 345253 (Stanislaus Co. Super. Ct.), and Wal-Mart Stores v. Turlock, CIV-F-04-5278 (E.D. Calif.). The ordinance adopted by the Turlock City Council last month banned most new or expanding discount stores that exceed 100,000 square feet and devote more than 5 percent of their space to groceries and other nontaxable goods. It was a death sentence to Wal-Mart’s plans for a super center, which are typically 180,000 to 220,000 square feet. The super centers also contain a full-service supermarket inside. Oral arguments in the state court action are scheduled for Wednesday. The judge will have 90 days to decide on Wal-Mart’s argument to overturn the city’s ordinance. While super centers typically offer a welcome 20 percent savings on groceries, communities have begun questioning whether the environmental impact of the stores is worth it, according to Rick Jarvis of Oakland’s Jarvis & Fay. Jarvis and his partner Ben Fay are outside counsel for Turlock. “There’s no issue with the Wal-Mart regular store,” Jarvis said. “Turlock has one and it’s of welcomed use.” But cities and town planners have begun sharing information about the negative effects of a Wal-Mart super center, he said. Some of those issues include the traffic congestion, economic harm to existing businesses and lower-paid, nonunion workers. Wal-Mart alleges that Turlock’s ordinance is aimed strictly to keep Wal-Mart out. “The ordinance’s primary purpose is to impact competition and affect Wal-Mart specifically,” said Wal-Mart’s counsel, Timothy Jones of Sagaser, Franson & Jones in Fresno. Wal-Mart’s federal action asserts violations of equal protection and interference with interstate commerce. Jones asserted that the environmental issues of Turlock’s ordinance have not been vetted properly under the California Environmental Quality Act. For example, if Wal-Mart is to open the super center outside Turlock, residents would have to drive farther and longer, posing a bigger drain on the environment, Jones said. But Turlock’s counsel said that the city was not required to order an environmental study. Planners are given a certain amount of discretion under state law. The ordinance does comply with both state law and CEQA, said Jarvis. “[Turlock is] not allowing anything that was prohibited before,” Jarvis said. “They are prohibiting a particular type of use — a super center — based upon findings of potential blight and adverse traffic.” Wal-Mart has fought similar ordinances in four other California areas. In Calexico and Contra Costa County, Wal-Mart won support in referendums on ordinances passed to block its expansion. In Inglewood and San Marcos, however, residents forced referendums and defeated them. Turlock is the first court action in California where Wal-Mart hopes to show that an ordinance lacks a proper basis. “The way the ordinance is written, a large big-box retailer could open right next to a big-box grocery store,” Jones said. If they can operate side by side, then why not under one roof, he asks. “What is being restricted is Wal-Mart’s way of doing business.” According to the Sprawl-Busters Web site, which has been called “Wal-Mart’s No. 1 enemy” by Forbes, 221 communities have successfully fought off Wal-Mart’s efforts to build “big-box stores” in their neighborhoods. Recent efforts to build in cities in Illinois, New York, Pennsylvania and Utah have sparked public hearings and reviews of zoning laws by city planners. Wal-Mart’s Kanelos said the company is not deterred by a “relatively small number of objectors” with “a narrow political agenda.” “We have the best public opinion surveys money can buy: our cash registers,” Kanelos said. “Wal-Mart has 100 billion customers coming to our stores every single week, and the vast majority appreciate the benefit Wal-Mart brings to their pocketbook,” Kanelos added. Dee McAree is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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