(January 20) The dispute over the county planning commission’s 2013 4-1 approval of a proposal by Dynamic Development to establish a Dollar General store at the corner of Twentynine Palms Highway and Sunburst Avenue in Joshua Tree has now moved on to the Fourth Appellate District Court.
The effort by Dynamic Development in conjunction with the Goodlettsville, Tennessee–based Dollar General Corporation has proceeded in stages, which could be likened to rounds, entailing opposition by local residents who consider the Dollar General to be out of character with the rustic community and would prefer to not see it built. In most of rounds, however, Dynamic Development has prevailed. That has not discouraged the opposition, which is now looking to use the proponent’s appeal to the Fourth Appellate District as a forum for challenging even further aspects of the project locals find objectionable.
Dynamic Development prevailed in the first round, convincing Gus Romo and Ernie Perea, planners with the county’s department of land use services, to make a finding that the construction of the store at its proposed location is justified. That finding was passed along to Romo and Perea’s boss, Terri Rahhal, the planning director for the county, and included a recommendation to be passed along to the county planning commission that it approve Dynamic Development’s conditional use permit application.
Dynamic Development won the second round when Rahhal accepted Romo and Perea’s report and reiterated its findings to the planning commission.
In that report, Romo and Perea maintained the 1.45 acre site is compatible from a land use standpoint with the applicant’s plans. In their jointly authored report and recommendation, Romo and Perea stated, “This area of 29 Palms Highway is designated for commercial development and intended to cater to pedestrian and vehicular traffic. The project is considered a general retail use permitted within the Joshua Tree Community Plan zoning designation subject to approval of a use permit. Therefore, the proposed development and retail use are considered compatible with the surrounding land uses and general plan land use designations.”
Dynamic Development prevailed in the third round when the planning commission followed Rahhal’s recommendation and approved the project.
Maintaining that they prided themselves on the rustic character of their town, a number of people in the community including the entire membership of the Joshua Tree Downtown Business Alliance took it upon themselves to extend the matter to a fourth round, appealing the planning commission’s decision to the board of supervisors. The local opponents of the project told the board of supervisors the 9,100-square foot Dollar General, a national corporate retail establishment, would compromise the Old West ambience of a desert town that relies on tourism.
In June 2013, the board of supervisors held a public hearing that incorporated a video hook-up with the meeting room at the Joshua Tree Community Center to consider the appeal, allowing Joshua Tree residents to lodge their protests without having to make the 200-mile round trip to the county seat to be heard. Despite that accommodation, round four went to Dynamic Development, with the board of supervisors denying the appeal and approving the project.
Having been shut out in the first four rounds, the Joshua Tree residents and the downtown business alliance insisted on a fifth round, filing a lawsuit in San Bernardino County Superior Court the following month, asserting the county’s land use services division did not fully examine the negative impacts of the project, including cutting into the profitability of preexisting businesses and upsetting the rural character of the district.
Round five went to the project opponents when San Bernardino County Superior Court Judge Donald Alvarez in March 2014 sided with the plaintiffs, ruling that the county needed to rescind Dynamic Development, LLC’s permit for the Dollar General retail store while county undertakes the preparation of an environmental impact report which Alvarez directed should specifically analyze the potential economic effects on surrounding businesses.
The county’s mitigated negative declaration of any untoward impacts of the project was insufficient, Alvarez ruled, in part because the analysis of the possible economic effects to existing businesses, which could result in urban decay, had not been done previously.
In reaching his conclusion, Alvarez relied upon a 29-year-old case pertaining to proposed new development in a less-than-highly-urbanized setting, the ski-resort community of Bishop. In that case, the court determined the California Environmental Quality Act called upon the governmental agency overseeing the project to “consider the secondary or indirect environmental consequences of economic and social changes.”
Though Alvarez said the California Environmental Quality Act is “not a fair competition statutory scheme intended to protect against economic competition,” he said the impact on preexisting businesses “must be considered if the loss of businesses affects the physical environment by causing or increasing urban decay.”
The project opponents of the Dollar General had further alleged the project was inconsistent with Joshua Tree’s community plan, which encourages small businesses, and challenged the project approval on the basis of a failure of the county and the proponent to do a traffic study. Alvarez did not find in favor of the plaintiffs on those issues.
Dynamic Development immediately intimated that it intended to extend the contest into a sixth round by appealing Alvarez’s ruling to the state appellate court in Riverside. Mark Ostoich, an attorney representing Dynamic Development, said the project met all the criteria of an acceptable property use.
Before Dynamic Development could initiate round six, the alliance and the town’s residents initiated and won that stage of the competition when they sought and received from Alvarez an order prohibiting the San Bernardino County land use division from permitting Dynamic Development from engaging in any pre-construction or preparatory activity relating to the construction of Joshua Tree Dollar General store at the corner of Twentynine Palms Highway and Starburst Drive in Joshua Tree.
In late December 2014, Dynamic Development made good on its earlier indication of a pending appeal, lodging a further legal challenge, effectively initiating round seven.
The appeal of Alvarez’s ruling to the Fourth Appellate District extends to Alvarez’s order that Dynamic Development carry out at its own expense the preparation of a full-blown environmental impact report. This transfers the matter to a three-judge panel in Riverside. The lodging of that appeal opened the door for the project opponents to have the issue with regard to the proposed project’s incompatibility with the Joshua Tree Community Plan as well as the need for a traffic study heard.
The Downtown Business Alliance filed its notice of opposition to the appeal. Ultimately, the courts, at both the Superior Court and appellate levels do not have land use authority. But Opponents are hopeful that the intent of law will be interpreted by the court in a way favorable to them, finding that the construction of large scale business structures, not in kind with the current architectural theme of Joshua Tree’s art district, will have an adverse impact upon the existing economics of the business district and will in effect be an eyesore turning away the current clientele. Opponents hope that the court will require this adverse impact to be mitigated or alleviated and that such mitigation can only mean that the Dollar General must be built in conformance with the scale and character of the existing historic district.