In 1945, California faced a flood of urbanites relocating to the suburbs in the wake of World War II. This started a cycle of economic downturns and business closures in urban areas. Despite decades of programs to address the impacts of this trend, many urban areas still face so-called urban decay, with abandoned buildings and shuttered windows, often covered in a layer of graffiti.
Generally, CEQA does not require a lead agency to consider the economic impacts of a proposed project. (See Guidelines, §§ 15064(f)(6), 15131(a).) While no California Supreme Court decision has addressed urban decay impacts in the context of CEQA, numerous appellate decisions have held that when those economic impacts may lead to business closures, which in turn lead to physical deterioration, the potential for urban decay is a potential physical impact requiring analysis under CEQA. CEQA does not define urban decay, but courts have adopted definitions similar to the following:
[U]rban decay is defined as, among other characteristics, visible symptoms of physical deterioration that invite vandalism, loitering, and graffiti that is caused by a downward spiral of business closures and multiple long term vacancies. This physical deterioration to properties or structures is so prevalent, substantial, and lasting for a significant period of time that it impairs the proper utilization of the properties and structures, or the health, safety, and welfare of the surrounding community. The manifestations of urban decay include such visible conditions as plywood-boarded doors and windows, parked trucks and long term unauthorized use of the properties and parking lots, extensive gang and other graffiti and offensive words painted on buildings, dumping of refuse on site, overturned dumpsters, broken parking barriers, broken glass littering the site, dead trees and shrubbery together with weeds, lack of building maintenance, abandonment of multiple buildings, homeless encampments, and unsightly and dilapidated fencing.
(Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685 (Joshua Tree); see also Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, 192.)
Urban decay often arises as an issue in cases involving large retail projects, including superstores or shopping centers planning to contain superstores. Allegations of urban decay impacts often paint a picture of a downward economic spiral that begins with the opening of a large retail establishment which takes all the business from small, local stores, causing them to shutter. However, as some cases are careful to note, the opening of such a business does not itself constitute an impact under CEQA, nor is it substantial evidence that urban decay will result. (See, e.g., Joshua Tree, supra, 1 Cal.App.5th at p. 691.) In some instances, additional retail might draw more shoppers to those competing stores. (Ibid.) Even if closures did occur, other more efficient businesses might take their place or the properties may be turned into a different use. (Ibid.) Even if permanent vacancies did occur, “the result would not necessarily be the kind of change to the physical environment that implicates CEQA.” (Ibid.)
Disputes over urban decay impacts often come down to the question of what evidence is necessary to trigger a requirement that the lead agency assess the impact. If there is sufficient evidence deterioration could occur, then the agency is required to assess the impact. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1207 (Bakersfield).) However, there is no conclusive presumption that a shopping center will cause such deterioration. (Ibid.) Predictions or opinions of nonexperts unsupported by specific factual foundations are insufficient. (Joshua Tree, supra, 1 Cal.App.5th at pp. 690-691.) However, lay persons’ factually based observations and evidence may lend support to an argument that urban decay must be analyzed. (Bakersfield, supra, 124 Cal.App.4th at pp. 1210-1211.) Of course, expert reports indicating some risk of urban decay are most likely to provide substantial evidence of the potential for urban decay and trigger the requirement to assess the potential impact. (Id. at pp. 1209, 1213 [study by economics professor concluding that a project’s impacts “may … culminate in physical effects associated with blight-like conditions” was among the evidence establishing that the EIR should have evaluated urban decay]; but see Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 15-16 [finding report by real estate broker with expertise in shopping center and grocery stores failed to provide substantial evidence of urban decay impacts].)
Lastly, when an EIR does evaluate urban decay, it is not required to determine whether a project will eliminate close and convenient shopping options. (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839, 847-849.) Where an analysis has been undertaken, the lead agency has discretion as to the methodology of that analysis, and its determination will be acceptable unless it is clearly inadequate or unsupported. (Id. at p. 851.)
In Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority, 2015 U.S. Dist. LEXIS 143642, the United States District Court for the Central District of California granted summary judgment on all but one claim in favor of the Los...
In California Clean Energy Committee v. City of Woodland, 2014 Cal. App. LEXIS 300, certified for partial publication on April 1, 2014, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate...
In an unpublished opinion, California Clean Energy Committee v. City of Woodland, 2014 Cal. App. Unpub. LEXIS 1481, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City...
In Creed 21 v. City of Glendora (Feb. 19, 2013) 2013 Cal.App.Unpub.LEXIS 1193, the Second District Court of Appeal upheld the trial court’s denial of Creed-21’s (Creed) petition for a writ of mandate against the City of Glendora. Creed contended...
Merced Alliance v. City of Merced, 2012 Cal.Unpub. LEXIS 8739 After years battling it out in public hearings and in court, the City of Merced claimed victory in its attempt to bring a 1 million square foot regional Wal-Mart distribution...
In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit...