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Judge: Revoke Dollar General building permit

Courtney Vaughn Hi-Desert Star | Posted: Thursday, March 6, 2014 10:10 pm

Source: Hi-Desert Star Courtney Vaughn.

SAN BERNARDINO — San Bernardino County’s planning department will have to rescind a permit it granted to Dynamic Development, LLC, for a Dollar General retail store in Joshua Tree, a county judge ruled Tuesday. The ruling was released Wednesday on a lawsuit filed against the county by the Joshua Tree Downtown Business Alliance.

Based on Judge Donald Alvarez’s ruling, the county will need to prepare a targeted environmental impact report to analyze potential economic effects on surrounding businesses, which wasn’t done before. Alvarez concluded the county must overturn its approval of the project because a mitigated negative declaration, a document that states the project’s impacts to the community and the company’s plans to compensate for or reduce those impacts, failed to properly analyze the project’s economic impacts resulting in urban decay, according to court records.

The ruling does not mean the store won’t be built. The environmental impact report must be prepared by the county, but Dynamic Development must pay for it if the company wants to proceed with the project.

A Dynamic Development representative said the company will either do the report or appeal the legal decision. “We have a couple aternatives,” David Lich, chief financial officer for Dynamic Development, said Friday. “One is to prepare the focused EIR to examine the alternative impacts. The other is to appeal the decision because we don’t believe it’s reasonable that the court ruled that a small retail store could result in severe economic impact to the community.”

County doesn’t agree The county maintains it has no stake in whether a Dollar General store gets built in Joshua Tree, but disagrees with the court ruling. “Our initial reaction is, we still think we did this project the right way,” David Wert, a county spokesman, said Thursday. “A court has determined that more information should have been considered. We disagree; we think we conducted the process correctly and can’t quite understand the urban decay argument and a full-blown EIR, which is usually something that’s reserved for freeway projects or housing projects …. We haven’t quite encountered that on a convenience store.” Wert said despite the court ruling that indicates the county failed to make all of the proper considerations before approving the project, the county doesn’t plan on changing its review process. “The county thinks we did it right the first time,” he said. Dynamic Development’s project was approved by the county planning commission in January 2013.

The planning commission’s decision was appealed to the board of supervisors, which maintained the commission was right to approve the permit. The Joshua Tree Downtown Business Alliance then filed a lawsuit against the county in July. The Joshua Tree DBA alleged the project was inconsistent with Joshua Tree’s community plan, which encourages small businesses. The complaint also asserted the county failed to consider economic impacts like urban decay, and said an updated traffic study should be done.

The judge agreed the economic impacts were not considered, which is required by the California Environmental Quality Act. He disagreed that a new traffic study was needed and didn’t think the project was inconsistent with the community plan. “Our main claim was the economic impact claim,” Babak Naficy, attorney for the Joshua Tree DBA, said Thursday. “We’re slightly disappointed that we didn’t win on the other issues, but we’re very gratified that the court agreed with us because this project … doesn’t go with that community and there is a genuine concern about how it affects this whole feel of Joshua Tree that all these businesses have tried to cultivate.”

In his ruling, Alvarez cited a 1985 case in Bishop where a judge determined that under California Environmental Quality Act guidelines, “the lead agency shall consider the secondary or indirect environmental consequences of economic and social changes, but may find them to be insignificant.” “It is recognized that CEQA is not a fair competition statutory scheme intended to protect against economic competition,” Alvarez stated. “However, such must be considered if the loss of businesses affects the physical environment by causing or increasing urban decay.” The ruling acknowledges there is little substantial evidence to support a fair argument over whether the project could cause urban decay by driving out smaller businesses. Alvarez said the Joshua Tree DBA doesn’t need to provide extensive studies or expert testimony to prove urban decay will result.

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