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2019/01/24 Planning Commission Agenda PacketCity of Rohnert Park Planning Commission AGENDA Thursday, January 24, 2019 6:00 P.M. 130 Avram Avenue, Rohnert Park NOTICE OF PARTICIPATION BY TELECONFERENCE The regular meeting will include the participation of Commissioner Haydon by teleconference at Kona Coast Resort Executive Meeting Room, 78-6842 Alii Drive, Kailua Kona, HI 96740 ina location that is publicly accessible This agenda shall be posted in the teleconference location. Public comment from this address shall be allowed pursuant to Government Code section 54953. To Anv Member of the Audience Desirins to Address the Plannins Commission: For public comment on items listed or not listed on the agend4 or on agenda items if unable to speak at the scheduled time, you may do so upon recognition from the Chairperson. PLEASE FILL OUT A SPEAKER CARD PRIOR TO SPEAKING. 1. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL (Blanquie_Borba Giudice_Haydon_Orloff_) CEREMONY FOR INSTALLATION OF PLANNING COMMISSIONER (Blanquie) PRESENTATION - Honoring Susan Adams for her many years of service on the Planning Commission. DECLARATION OF ABSTENTION ACKNOWLEDGEMENT OF POSTING OF AGENDA - Agenda has been posted in three public places: Community Center, Public Safety Building and City Hall. PUBLIC COMMENT - Persons who wish to speak to the Commission regarding an item that is not on the agenda may do so at this time. 9. CONSENT CALENDAR - ADOPTION OF MINUTES Approval of the Draft Minutes of the Planning Commission meeting of October 3, 2018, October 15,2018, October 25,2018 and November 8, 2018. 7 J. 4. 5. 6 7 8. 9.1 10. AGENDA ITEMS 10.1 PUBLIC HEARING _ ONE YEAR EXTENSION OF SITE PLAN AND ARCHITECTURAL REVIEW AND SIGN PROGRAM _ PLTX18-OOO4 - Sheppard Mullin, on behalf of Walmart - Consideration of Resolution No. 2019-05, approving a one-year extension of the approvals for the Site Plan and Architectural Review (PL2009-02SR) and Sign Program (PL2010-08SR) for the Walmart Expansion project located at 4625 Redwood Drive (APN 045-055-004). CEQA: The City Council certified the EIR and adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program for the lV'almart Expansion Project on January 13, 2015. Nofurther environmental review is necessaryfor the requested extension. 11.SELECTION OF PLANNING COMMISSIONER TO THE SUBDIVISION RE,VIEW COMMITTEE 12. ITEMS FROM THE PLANNING COMMISSION 13. ITEMS FROM THE DEVELOPMENT SERVICE STAFF 14. ADJOURNMENT Appeals of any decisions made tonight must be received by the Planning Division within 10 days ond no later than 5:00 p.m. on Febraary 4,2019. NOTE: If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at public hearing(s) described in this Agenda, or in written coffespondence delivered to the City of Rohnert Park at, or prior to the public hearing(s). Disabled Accommodation: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting please call (707) 588-2231. Notification 72 hours in advance of the meeting will enable the city to make reasonable arrangements to ensure accessibility to the meeting. (28 CFR 35.102.35.104 AD Title III) CERTIFICATION OF POSTING OF AGENDA I, Eileen Baughman, Community Development Assistant for the City of Rohnert Park, declare that the foregoing notice and agenda for the January 24,2019, Planning Commission Meeting of the City of Rohnert Park was posted and available for review on January 18,2019 at Rohnert Park City Hall, 130 Avram Avenue, Rohnert Park,Califomia 94928. The agenda is available on the City of Rohnert Park's web site at www .rpcity.org. Signed this lTth day of January,2}l9 at Rohnert Park, Califomia. PLANNING COMMISSION RESOLUTION NO. 2019-06 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA HONORING SUSAN ADAMS FOR HER SERVICE ON THE PLANNING COMMISSION AND HER COMMITMENT TO THE CITIZENS OF ROHNERT PARK WHEREAS, Susan Adams was appointed to the City of Rohnert Park Planning Commission on January 1, 2003 and has served as a Planning Commissioner with extraordinary distinction for over 13 years (2003-2008, 2011- 2018); and WHEREAS, given her natual leadership ability as a facilitator and possessing the utmost of respect of her colleagues, Susan Adams served as Vice-Chair of the Planning Commission for four (4) years and presided as Chair of the Planning Commission for five (5) years respectively; and WHEREAS, while presiding as Chair of the Planning Commission, Susan Adams played a significant role in numerous projects of interest to the community, most notably the approval of the Station Avenue Final Development Plan that includes multiple uses designed to catalyze a vibrant downtown as well as participation in the development and adoption of the Form Based Code for the larger Downtown District Amenity Zone. WHEREAS, Susan Adams with her expertise and knowledge of land use development, provided remarkable assistance in the review and processing of numerous land use actions: adoption and annexation of the University District, Southeast,Wilfred Dowdell, and Northwest Specific Plans and the Stadium Lands Planned Development, bringing a total of 2981 new housing units and over 1,000,000 sq. ft. of new Commercial space in to the City of Rohnert Park; the design review and approval of four (4) new hotels to the City of Rohnert Park (Oxford Suites, Cambria, Fairfield Inn and Home 2 Suites); active participant in the Development Area Plan for Amy’s Kitchen Drive- Thru, one of the nation’s top brands of natural and organic foods and the first ever drive-thru of its kind; the development and implementation of countless land use and municipal code policies that have and will shape Rohnert Park now and in the future and a decision making member of the Planning Commission in 544 Resolutions; and WHEREAS, it is the sincere and heartfelt desire of the Planning Commission and each of its members to recognize and honor, with utmost gratitude, by this Resolution, the outstanding service Ms. Adams had rendered to the City of Rohnert, its citizens, and property owners. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Rohnert Park, California, hereby honors Susan Adams for dedicating her valuable time and tireless efforts to improve the quality of life for the present and future citizens of the City of Rohnert Park and declare profound appreciation to Susan Adams for her outstanding leadership on the Planning Commission as member, Vice Chair and Chair. DULY AND REGULARLY ADOPTED on this 24th day of January, 2019 by the City of Rohnert Park Planning Commission by the following vote: AYES: _____ NOES:_____ ABSENT:_____ ABSTAIN:_____ BLANQUIE____ BORBA ____ GIUDICE ____ HAYDON _____ ORLOFF_____ Gerard Giudice, Chairperson, City of Rohnert Park Planning Commission Attest: _______________________________________ Eileen Baughman, Recording Secretary Preliminary Site Plan Conceptual View Conceptual View #1 Conceptual View #2 Conceptual View #3 Project Signage Meeting Date: Agenda Item No: Subject: Location: Applicant:Walmart, Inc. City of Rohnert Park PLANNING COMMISSION STAFF REPORT January 24,2019 l0.l File No. PL2009-02SR Walmart Site Plan and Architectural Review and File No. PL2010-08SR Sign Program - Consideration of a One-Year Extension of the Approvals for the Site Plan and Architectural Review and Sign Program for the Walmart Expansion project 4625 Redwood Drive (APN 045-055-004) RECOMMENDATION: Adopt resolution 1. Approving a one-year extension of the approvals for Site Plan and Architectural Review and Sign Program for the Walmart Expansion project located at 4625 Redwood Drive. BACKGROUND On January 21,2009, Walmart Stores, Inc. ("Walmart") submitted an application for a 40,260 square foot expansion of the existing Walmart Store located at 4624 Redwood Drive, Rohnert Park, CA 94928 ("Project"). The Project would enable Walmart to add a 24-hour grocery component to its existing store. The City prepared an environmental impact report ("EIR") to analyze the Project's potential environmental impacts. The Planning Commission declined to certify the EIR on April 22,2010. Walmart appealed. On July 29,2010, the City Council granted Walmart's appeal, approved the Project, certified the EIR, adopted Findings of Fact and a Statement of Oveniding Considerations, and imposed a Mitigation and Monitoring Plan. On August 31,2010, Sierra Club filed the Sierra Club Action (captioned Sierua Club v. City of Rohnert Park, Sonoma Superior Court Case No. SCV 248112). On June 9, 2011, the trial court granted Sierra Club's Petition for Writ of Mandate and ordered the City to vacate the resolutions approving the Project. The City rescinded the resolutions approving the Project on June 12,2012, then partially revised the EIR. Page I of5 On August I4,20I4, the Planning Commission certified the revised EIR, adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program, and approved the Site Plan and Architectural Review and Sign Program applications (collectively, the "Entitlements"). On January 13, 2015, the City Council considered appeals of the Planning Commission's August 14,2014 decisions, denied the appeals, certified the revised EIR, adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program, and approved the Entitlements. On March 20,2015, Nancy Atwell, Elizabeth Craven, and Matthew Weinstein filed the Atwell Action (captioned Atwell v. City of Rohnert Park, Sonoma Superior Court Case No. SCV256S91) to challenge the Project's consistency with the General Plan. The Atwell Action was finally resolved in the City's favor on November 26,2018 when the Court of Appeal issued the published opinion attached hereto as Exhibit 1. On April 75, 2016, the City hled a Motion to Discharge the Peremptory Writ of Mandate previously issued in the Siena Club Action. The Sierra Club Action was finally resolved in20l7 when Sierra Club voluntarily dismissed its appeal of the Superior Court's Order granting the City's Motion to Discharge the Peremptory Writ of Mandate. Meantime, on January 28,2016, the Planning Commission approved a one-year extension of the Entitlements. The Planning Commission approved a second one-year extension of the Entitlements on January 12, 2017, and a third one-year extension of the Entitlements on January 11,2018. The Entitlements are currently scheduled to expire on January 13,201,9. The Planning Commission approved the prior extensions because it determined that the pending litigation effectively precluded Walmart from commencing construction of the Project. ANALYSIS Walmart applied for a fourth one-year time extension for the Entitlements on December 21,2018. The application was received prior to the January 13,2019 expiration date and this matter is being brought before the Planning Commission for its consideration. There have been no changes in the approved plans for the Project. No modifications have been made in the chapter in the Zoning Ordinance regarding signs that would result in any changes in the approved Sign Program. Pursuant to Zoning Ordinance Section 17.25.035, regarding Lapse of Approval/Renewal for Site Plan and Architectural Review approvals: Page 2 of5 A. Site Plan and Architectural Review approval shall lapse one year after the date of final approval or at an altemative date specified at the time of approval, unless: 1. A building permit has been issued and construction has diligently commenced; or 2. A Certificate of Occupancy has been issued; or 3. The use is established; or 4. The Site Plan and Architectural Review approval is renewed in accordance with subsection B below. 5. The project is a residential development that does not require the approval of a tentative subdivision map, or otherwise not vested through a development agreement with the city, then the approval shall expire after a twenty-four-month period, unless extended for special circumstances by the city council. B. A Site Plan and Architectural Review approval may be renewed for an additional period of one year, provided that prior to the expiration date, an application for renewal is hled with the Planning Commission. The Planning Commission shall not deny the renewal request without first holding a Public Hearing and making findings supporting the reason for denial. If the Planning Commission denies the renewal request, the applicant shall have ten calendar days to appeal the decision to the City Council as set forth in Chapter 17.25 Artlcle XII. Pursuant to ZoningOrdinance Section 17.27.040(H), regarding expiration of Sign Permit and Sign Program approvals: H. Approval Period, Expiration and Time Extensions. A sign permit or sign program approval will expire one year from the date of issuance unless the sign or at least one sign in an approved sign program has been installed in accordance with the conditions of approval. If the sign permit or sign program is for a building or shopping center under construction, the one year approval period will commence on the date of issuance of the first certificate ofoccupancy for the project. 1. Prior to expiration, the applicant may apply for an extension of up to one additional year. The extension shall be reviewed by the review authority that acted on the original request. 2. The permit or approval will be null and void if the zoning ordinance changes significantly prior to the installation of the sign to a point that given the new regulations in the zoning ordinance such a sign would not be permitted. Page 3 of5 The City of Rohnert Park does not have a litigation tolling ordinance which would allow the project Entitlements to remain in place until litigation is resolved. This necessitates the applicant applying annually for extension of the Entitlements per the Rohnert Park Municipal Code which allows for one-year extensions of the approvals. As explained in the attached letter from Walmart, Walmart did not exercise the project approvals while the Atwell and Sierra Club Actions were pending due to uncertainty in the outcome of the litigation, the considerable expense associated with starting permits to vest the Entitlements, and the likelihood that the petitioners would seek a restraining order prohibiting Walmart from commencing construction during the pendency of the litigation. (Exhibit 2.) Staff recommends that the Planning Commission approve Walmart's request for a fourth and final one-year extension of the approvals for the Site Plan and Architectural Review and the Sign Program. The City has defended the Project in the Atwell and Sierra Club Actions at Walmart's expense since 2010. Moreover, the Atwell and Sierra Club Actions have effectively precluded Walmart from commencing construction of the Project during that period. Finally, the time between November 26,2018 - when the Atwell Action was finally resolved - and the expiration of the permits on January 13,2079, was too short for Walmart to pull permits to begin construction of the Project. With the Atwell and Sierra Club Actions now resolved, this is the final extension request that staffcan support. ENVIRONMENTAL REVIEW As noted above, on January 73,2015, the City Council certified the EIR and adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program for the Entitlements. No further environmental review is necessary for the extension of the Entitlements. PUBLIC NOTIF'ICATI AND INFORMATION A public hearing notice denoting the time, date, and location of this hearing was publishedin The Community Voice on January 11,2019. Property owners within 500 feet of the Project site and interested parties requesting notification were also mailed notices, and the notice was posted pursuant to State law. RECO ACTIONS Based on the analysis above and the findings listed in the attached resolutions, staff recommends that the Planning Commission take the following actions: L Approve Resolution No. 2019-05 approving a one-year extension of the approvals for Site Plan and Architectural Review and a Sign Program for the Walmart Expansion project located at 4625 Redwood Drive. ATTACHMENTS: A. Resolution No. 2019-05 Page I of5 EXHIBITS: l. Published Court of Appeal Opinion inAtwell v. City of Rohnert Park 2. Letter from Walmart APPROV J , Planning Manager Date Page 2 of5 Page 1 of 2 PLANNING COMMISSION RESOLUTION NO. 2019-05 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA APPROVING A ONE-YEAR EXTENSION OF THE APPROVALS OF THE SITE PLAN AND ARCHITECTURAL REVIEW AND SIGN PROGRAM FOR THE WALMART LOCATED AT 4625 REDWOOD DRIVE (APN 045- 055-004) WHEREAS, the City processed applications for the Site Plan and Architectural Review (Planning Application No. PL2009-02SR) and Sign Program (Planning Application No. PL2010- 08SR) for a 40,260 square foot expansion of the existing Walmart Store located at 4624 Redwood Drive, Rohnert Park, CA 94928 (“Project”) in the time and manner prescribed by State and local law. The Project would enable Walmart, Inc. to add a 24-hour grocery component to its existing store; and WHEREAS, on January 13, 2015, the City Council of the City of Rohnert Park certified the Environmental Impact Report, adopted a Statement of Overriding Considerations and Mitigation Monitoring and Reporting Program, and approved the applications for Site Plan and Architectural Review and Sign Program for the Project; and WHEREAS, Walmart, Inc. has submitted an application for a one-year time extension of the approvals for Site Plan and Architectural Review and Sign Program for the Project, on the grounds that litigation had effectively precluded Walmart, Inc. from moving forward with the Project; and WHEREAS, the litigation that Walmart claims precluded it from moving forward with the Project was resolved on or about November 26, 2018; and WHEREAS, on January 24, 2019, the Planning Commission held a public meeting at which time interested persons had an opportunity to testify either in support or opposition to the proposed time extension for the Site Plan and Architectural Review and Sign Program; and WHEREAS, the Planning Commission, using their independent judgment, reviewed the time extension request and all evidence in the record related to the Project including the staff report, public testimony, and all evidence presented both orally and in writing; and NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Rohnert Park, California, hereby makes the following findings: A.The Planning Commission, at a public hearing on January 24, 2019, reviewed Walmart, Inc.’s request for a one-year extension of the approvals of the Site Plan and Architectural Review and Sign Program for the Project, and all evidence in the record related to the Project including the staff report, public testimony, and all evidence presented both orally and in writing. Attachment A Page 2 of 2 B.The Planning Commission finds that a one-year extension of the approvals of the Site Plan and Architectural Review and Sign Program for the Project is consistent with the approved plans for the Walmart expansion and with the Rohnert Park Municipal Code Sections 17.25.035(B) and 17.27.030(H)(1). Such entitlements are hereby extended by one year and shall expire on January 13, 2020. C.The Planning Commission finds that a one-year extension of the approvals of the Site Plan and Architectural Review and Sign Program does not necessitate further environmental review of the Project under CEQA, because the City Council has certified the environmental impact report (SCH# 2009052008) for the Project. NOW THEREFORE BE IT FURTHER RESOLVED, that the Planning Commission does hereby approve Walmart, Inc.’s request for a one-year extension of the approvals of the Site Plan and Architectural Review and Sign Program for the Walmart Store expansion located at 4625 Redwood Drive (APN 045-055-004) subject to the following conditions: 1.Walmart, Inc. shall comply with all applicable sections of the City of Rohnert Park Municipal Code. 2.Walmart, Inc. shall secure all necessary permits and clearances from the Rohnert Park Building Department prior to commencement of construction. DULY AND REGULARLY ADOPTED on this 24th day of January, 2019 by the City of Rohnert Park Planning Commission by the following vote: AYES: _____ NOES:_____ ABSENT:_____ ABSTAIN:_____ BLANQUIE____ BORBA ____ GIUDICE ____ HAYDON _____ ORLOFF_____ Chairperson, City of Rohnert Park Planning Commission Attest: ________________________________ Eileen Baughman, Recording Secretary Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.1 27 Cal.App.5th 692 Court of Appeal, First District, Division 1, California. Nancy ATWELL et al., Plaintiffs and Appellants, v. CITY OF ROHNERT PARK, Defendant and Respondent; Wal-Mart Stores, Inc., Real Party in Interest. A151896, A153011 | Filed 9/18/2018 | As Modified 9/26/2018 | Certified for Partial Publication.* Synopsis Background: Objectors brought declaratory judgment action and petition for writ of mandate against city, challenging city council's approval of expansion of existing store. The Superior Court, Sonoma County, No. SCV256891, Rene A. Chouteau, J., denied petition. Objectors appealed. Holdings: The Court of Appeal, Margulies, J., held that: [1]action constituted same cause of action as asserted in prior action, supporting finding that res judicata barred instant action; [2]objectors were in privity with plaintiffs in prior action; and [3]objectors' claims did not simply raise question of law, also supporting finding that res judicata barred instant action. Affirmed. Procedural Posture(s): On Appeal; Complaint for Declaratory Relief; Review of Administrative Decision. West Headnotes (14) [1]Appeal and Error Judgment on the pleadings Pleading Judgment on Pleadings A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. Cases that cite this headnote [2]Judgment Nature and requisites of former recovery as bar in general The doctrine of res judicata bars a party and persons in privity with that party from relitigating a claim following a final judgment on the merits of the claim. Cases that cite this headnote [3]Judgment Nature and requisites of former recovery as bar in general The prerequisite elements for applying the doctrine of res judicata to either an entire cause of action or one or more issues are the same: (1) a claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceedings. Cases that cite this headnote [4]Judgment Nature and elements of bar or estoppel by former adjudication Judgment Matters which might have been litigated Res judicata not only bars issues actually litigated but also bars issues that could have EXHIBIT 1 Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.2 been litigated, as long as the later-raised issues constitute the same cause of action involved in the prior proceeding. Cases that cite this headnote [5]Judgment What constitutes identical causes Objectors' instant action, challenging city council's approval of extension of existing store and seeking declaration of rights under terms of city's general plan, constituted same cause of action as asserted in prior action for alleged violations of state planning and zoning law, supporting finding that res judicata barred instant action, even though city council had adopted new resolutions regarding store expansion project in time between prior action and instant action, where prior action challenged same expansion project as being inconsistent with general plan, instant project also asserted noncompliance with general plan, and project proposal remained unchanged. Cases that cite this headnote [6]Judgment What constitutes identical causes Whether two actions constitute the same cause of action, as could result in finding that res judicata bars second of the actions, turns on whether they are based on the same primary right. Cases that cite this headnote [7]Judgment What constitutes identical causes A plaintiff's primary right, in determining whether two actions are based on same primary right and thus whether res judicata bars second action, is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. Cases that cite this headnote [8]Judgment Theory of action or recovery Judgment Nature and Extent of Relief Sought or Granted For purposes of res judicata, if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery. Cases that cite this headnote [9]Judgment What constitutes privity in general Objectors, who brought instant petition for writ of mandate and declaratory judgment on behalf of citizens, taxpayers, property owners, and electors of city to challenge city council's approval of store expansion project, were in privity with plaintiffs in prior litigation, as could support finding that instant petition was barred by res judicata, where both petitions sought to bring claims on behalf of the public against a public entity, and objectors did not allege any harm apart from harm incurred by the community. Cases that cite this headnote [10]Judgment What constitutes privity in general The concept of privity of parties, in determining whether a successive action is barred by res judicata, refers to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights. Cases that cite this headnote [11]Judgment What constitutes privity in general Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.3 As applied to questions of preclusion, privity requires the sharing of an identity or community of interest, with adequate representation of that interest in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit. Cases that cite this headnote [12]Judgment What constitutes privity in general A nonparty alleged to be in privity with a party in a successive action, as could support finding that successive action is barred by res judicata, must have an interest so similar to the party’s interest that the party acted as the nonparty’s virtual representative in the first action. Cases that cite this headnote [13]Judgment What constitutes privity in general Privity, as used in the context of res judicata or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person's relationship to the subject matter of the litigation. Cases that cite this headnote [14]Judgment Scope and Extent of Estoppel in General Objectors' claims against city, in petition for writ of mandate and declaratory judgment challenging city council's approval of store expansion project, did not simply raise question of law, supporting finding that objectors' action was barred by res judicata based on prior action which challenged same project, where objectors sought interpretation of an ordinance as it applied to project approval. Witkin Library Reference: 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 409 [Judgment for Defendant as Bar; Theories for Determining Whether Cause of Action Is Different; Different Primary Right.] Cases that cite this headnote **250 Sonoma County Superior Court, Rene A. Chouteau, Judge (Sonoma County Super. Ct. No. SCV256891) Attorneys and Law Firms Shore, McKinley & Conger, LLP, Brett S. Jolley, Stockton, for Plaintiffs and Appellants. Burke, Williams & Sorensen, LLP, Michelle Marchetta Kenyon and Nicholas J. Muscolino, Oakland, for Defendant and Respondent City of Rohnert Park. Morgan, Lewis & Bockius, LLP, Rollin B. Chippey and Deborah E. Quick, San Francisco, for Real Party in Interest and Respondent Wal-Mart Stores, Inc. Opinion Margulies, J. *694 Appellants Nancy Atwell, Elizabeth Craven, and Matthew Weinstein appeal the denial of their petition for writ of mandate against the City of Rohnert Park (City). In 2010 and 2015, the city council approved and reapproved an expansion for an existing Wal-Mart store, which would include a full grocery component. Appellants contend the city council’s second approval was inconsistent with its General Plan and land use policy LU-7. The trial court concluded appellants' petition was barred by res judicata because a prior petition challenging the city council’s initial approval also asserted a claim contesting General Plan consistency. The trial court further held appellants' petition was barred by the statute of limitations and *695 substantial evidence supported the city council’s determination the expansion complied with the General Plan. We affirm the judgment. I. BACKGROUND A.The Initial Project and EIR The City’s General Plan includes land use policy LU-7 (hereafter Policy LU-7) which declares the City’s Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.4 obligation to: “Encourage new neighborhood commercial facilities and supermarkets to be located to maximize accessibility to all residential areas. [¶] The intent is to ensure that convenient shopping facilities such as supermarkets and drugstores are located close to where people live and facilitate access to these on foot or on bicycles. Also, because Rohnert Park’s residential population can support only a limited number of supermarkets, this policy will encourage dispersion of supermarkets rather than their clustering in a few locations.” (Italics omitted.) In 2009, Wal-Mart Stores, Inc. (Wal-Mart) filed an application with the City, proposing to expand its existing store located in the northwest corner of town. The expansion would add approximately 36,000 square feet to the existing Wal-Mart “big box” discount store for the addition of a 24-hour grocery/supermarket (Project). In 2010, the City prepared a draft environmental impact report (EIR). That EIR evaluated whether the Project was consistent with the General Plan. With regard to Policy LU-7, the draft EIR concluded the Project was “consistent.” It stated: “The proposed project would expand the existing Walmart store to add space for food sales. There are no existing grocery stores within a 1-mile radius of the project site; therefore, the proposed project would be consistent with the commentary language concerning dispersal of grocery uses throughout the City. Furthermore, the proposed project would install bicycle storage facilities and enhance pedestrian facilities to improve accessibility for these **251 modes of transportation. Finally, the 24-hour operation of the expanded store would provide local residents with the opportunity to shop at times when existing stores are not open.... These characteristics are consistent with the objective of maximizing accessibility to supermarkets.” In response, the City received public comments asserting the Project was not consistent with the General Plan or Policy LU-7. These letters argued the Project would close existing neighborhood-serving grocery stores, is located in a large commercial area, and would contribute to an over- concentrated area around the U.S. Highway 101/Rohnert Park Expressway interchange. The City addressed these comments in its final EIR. It concluded the concerns lacked merit and did not detract from the Project’s consistency with *696 Policy LU-7. Specifically, it noted the Project would be “well- positioned” to serve residents in northern Rohnert Park as well as residents in Cotati and southwest Santa Rosa. The City further noted drive times to the Project are shorter than or similar to the time needed to reach other existing supermarkets. The planning commission subsequently considered the EIR. Following a public hearing, the planning commission declined to approve the original EIR or the Project. The planning commission instead concluded the EIR and Project did not comply with the General Plan and was, in part, inconsistent with Policy LU-7. Wal-Mart subsequently appealed the planning commission’s decision to not certify the EIR, arguing the EIR satisfied the requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and complied with Policy LU-7. Following a public hearing at which Policy LU-7 was discussed, the city council granted the appeal and specifically found “The Project would be consistent with all applicable General Plan goals and policies....” The resolution approving the site plan concluded: “The Project, as proposed and with recommended conditions and mitigation measures, will be consistent with the General Plan and Zoning Ordinance.” B.The Sierra Club Action Sierra Club and Sonoma County Conservation Action (SCCA) filed a petition for writ of mandate in Sonoma County Superior Court challenging the city council’s EIR and Project approvals. (Sierra Club v. City of Rohnert Park (2012, No. SCV248112) (Sierra Club action).) Appellants were not named parties in that action. The petition asserted three causes of action for violating CEQA, the state Planning and Zoning Law (Gov. Code, § 65000 et seq.), and the Rohnert Park Municipal Code. The second cause of action for violations of the state Planning and Zoning Law alleged: “The Project is inconsistent and incompatible with applicable goals, policies and objectives of the Rohnert Park General Plan, including but not limited to ... Policy LU-7....” The Sierra Club action requested in part a peremptory writ of mandate commanding the City to set aside its EIR certification and Project approval. Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.5 Although raised in its petition, Sierra Club and SCCA did not pursue the claim that the Project conflicted with Policy LU-7. The trial court subsequently granted the petition and ordered the resolutions approving the Project be vacated and the Project be remanded for additional environmental review. Specifically, the court ordered “the EIR must address each and every traffic mitigation measure proposed for the Project and reanalyze the cumulative noise impacts....” **252 *697 C. Revised EIR and Subsequent Administrative Appeals The City vacated the Project approvals and prepared a revised EIR. However, the revised EIR did not alter the original EIR’s analysis of the Project’s consistency with the General Plan. In 2014, the planning commission held a public hearing on the revised EIR. Appellants objected to the Project during this hearing, alleging the Project “is in a section of town that has very few residents in it, and ... that’s clearly at odds with the LU-7 plan. The original economic plan says that it would draw customers from a wide area.” In response, the City asserted the Project “is consistent with City of Rohnert Park’s General Plan. [¶] Even now, one and two neighborhoods coming on line in the west side of Rohnert Park are neighborhoods that will need grocery stores and services. There are other businesses operating at an expanded time frame, where those workers do need grocery stores and services.” The City also took the position that the issue of urban decay was not part of what the court found inadequate about the EIR and thus is not before the planning commission. The planning commission subsequently certified the revised EIR and reapproved the Project. Appellants then appealed the planning commission’s decision. At the public hearing on the appeal, appellants again objected to the Project and challenged its consistency with the General Plan. Wal-Mart opposed the appeal and argued the Project complied with Policy LU-7 for three principal reasons: (1) the Project is located where there are no competing supermarkets within a mile, thereby meeting the goal of dispersing supermarkets; (2) the supercenter will be open 24 hours a day, helping augment options for local customers; and (3) the City, in the intervening years, has approved residential construction in the vicinity of Project. The City staff report also opined the Project was consistent with Policy LU-7, noting: “If anything, the Project is more consistent with the objectives of Policy LU-7 today than it was when it was considered in 2010 because of increased residential development in the vicinity of the Project.” The city council denied the appeal and concluded the Project would comply with the City’s General Plan and zoning ordinance. D. Trial Court Proceedings In 2015, appellants filed a petition in the superior court challenging the Project’s consistency with Policy LU-7 and seeking a writ of mandate ordering the City to vacate the Project approvals. After merits briefing was completed, the City filed a motion for judgment on the pleadings asserting appellants' claims were barred by the doctrine of res judicata. *698 The trial court issued a tentative order denying the petition and granting the City’s motion for judgment on the pleadings. The tentative order concluded the petition was barred by res judicata and the statute of limitations. The order further concluded substantial evidence supported the city council’s determination of General Plan consistency. Appellants did not contest the tentative order, and judgment was entered in favor of the City. Appellants timely appealed. II. DISCUSSION A. Motion for Judgment on the Pleadings [1]“ ‘A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.’ **253 [Citation.] ‘All properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law....’ ” (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777, 174 Cal.Rptr.3d 626, 329 P.3d 180.) In granting the City’s motion for judgment on the pleadings, the trial court concluded appellants' petition was barred by res judicata and the statute of limitations. For the reasons we explain below, we conclude res judicata bars appellants' petition. Accordingly, we need Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.6 not address whether it also is barred by the statute of limitations. 1. Res Judicata [2][3] [4]“The doctrine of res judicata bars a party and persons in privity with that party from relitigating a claim following a final judgment on the merits of the claim. ‘ “ ‘The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceedings.’ ” ’ ” (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1510, 173 Cal.Rptr.3d 66 (Roberson).) Res judicata not only bars issues actually litigated but also bars issues that could have been litigated, as long as the later-raised issues constitute the same cause of action involved in the prior proceeding. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202, 24 Cal.Rptr.3d 543 (Federation of Hillside).) *699 The City claims appellants' petition is barred by res judicata because consistency with the General Plan was challenged in the Sierra Club action, the Sierra Club action resulted in a final judgment, and appellants are in privity with Sierra Club and SCCA. While appellants agree the Sierra Club action resulted in a final judgment, they contend this petition raises distinct claims and they are not in privity with Sierra Club and SCCA. a.Identical Cause of Action [5]The second claim in the Sierra Club action alleged violations of the state Planning and Zoning Law. It asserted the Project “is inconsistent and incompatible with applicable goals, policies and objectives of the Rohnert Park General Plan,” including Policy LU-7. Similarly, appellants' petition contends the Project violates the state Planning and Zoning Law because it conflicts with the Rohnert Park General Plan. The petition alleges “the Project directly contravenes Policy LU-7” and, due to such inconsistency, “the City acted in an arbitrary and capricious manner and committed a prejudicial abuse of discretion in approving the Project....” The petition also seeks a declaration of rights under the terms of the General Plan. Accordingly, the two petitions appear to raise the same issue regarding the Project’s compliance with the City’s General Plan. Appellants assert their petition raises a distinct issue because the question of whether the Project is consistent with the General Plan was not actually litigated in the Sierra Club action. But as noted above, res judicata may bar issues that “could have been litigated.” (Federation of Hillside, supra, 126 Cal.App.4th at p. 1202, 24 Cal.Rptr.3d 543, italics added.) Appellants, however, contend their petition could not have been litigated in the Sierra Club action because it is based on the city council’s 2015 resolutions, which were approved **254 following the Sierra Club action and contain new findings of General Plan consistency. [6][7] [8]Whether appellants' challenge to the city council’s 2015 resolutions and the prior challenge to the city council’s 2010 resolutions constitute the same cause of action turns on whether “they are based on the same ‘primary right.’ ” (Federation of Hillside, supra, 126 Cal.App.4th at p. 1202, 24 Cal.Rptr.3d 543.) That is, “[t]he plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based.” (Ibid.) “ ‘[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.’ ” (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160, 17 Cal.Rptr.2d 639.) In arguing the city council’s 2015 resolutions constitute a new wrong, appellants rely on *700 Planning & Conservation League v. Castaic Lake Water Agency (2010) 180 Cal.App.4th 210, 103 Cal.Rptr.3d 124 (Castaic Lake). In that case, a nonprofit organization challenged an EIR concerning a water transfer. (Id. at p. 219, 103 Cal.Rptr.3d 124.) The appellate court directed the issuance of a writ vacating the certification of the EIR as legally inadequate. (Id. at p. 221, 103 Cal.Rptr.3d 124.) After a second EIR was certified in 2004, another petition was filed challenging the revised EIR. (Id. at pp. 218– Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.7 219, 224, 103 Cal.Rptr.3d 124.) The court concluded the subsequent petition involved a different cause of action because the second EIR was a “factually distinct attempt[ ] to satisfy CEQA’s mandates.” (Id. at p. 228, 103 Cal.Rptr.3d 124.) Specifically, the court concluded the initial action “and the underlying actions involve distinct episodes of purported noncompliance regarding ‘the same general subject matter’ [citation], namely, the public’s statutory right to an adequate EIR concerning the [water] transfer [citations].” (Ibid.) While Castaic Lake concluded the second petition could proceed due to “ ‘changed conditions and new facts which were not in existence at the time the action was filed’ ” (Castaic Lake, supra, 180 Cal.App.4th at p. 227, 103 Cal.Rptr.3d 124), other courts have found subsequent petitions barred because they arise from materially similar facts. For example, in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 134 Cal.Rptr.3d 194 (Ballona Wetlands), objectors filed petitions for writs of mandate challenging Los Angeles’s certification of an EIR and project approvals for a certain real estate development. (Id. at p. 462, 134 Cal.Rptr.3d 194.) After the trial court granted the petitions in part, Los Angeles vacated its certification of the EIR and project approvals. (Id. at p. 463, 134 Cal.Rptr.3d 194.) Los Angeles then revised certain sections of the EIR, recertified it, and reapproved the project. (Id. at p. 464, 134 Cal.Rptr.3d 194.) The objectors again challenged the EIR based both on the revisions and on new grounds. (Ibid.) The court concluded the objectors were barred from raising new challenges to the revised EIR: “After considering the petitioner’s challenges to an EIR or other agency action and rendering a final judgment and peremptory writ of mandate, a trial court evaluating a return to the writ may not consider any newly asserted challenges arising from the same material facts in existence at the time of the judgment. To do so would undermine the finality of the judgment.” (Id. at p. 480, 134 Cal.Rptr.3d 194.) **255 Similarly, in Federation of Hillside, supra, 126 Cal.App.4th 1180, 24 Cal.Rptr.3d 543, Los Angeles prepared a general plan framework and EIR, which cited and relied in large part on a transportation improvement mitigation plan. (Id. at p. 1190, 24 Cal.Rptr.3d 543.) Following an initial petition challenging the general plan framework and EIR, Los Angeles amended the EIR to add responses to comments on the transportation improvement mitigation plan, made new findings regarding mitigation measures, adopted a statement of overriding considerations, and readopted the general plan framework. (Id. at pp. 1191–1192, 24 Cal.Rptr.3d 543.) A second petition was filed challenging the adoption of the general plan framework, CEQA findings, and statement of overriding considerations. (Federation of Hillside, at p. 1193, 24 Cal.Rptr.3d 543.) On appeal, the court noted certain current findings by *701 Los Angeles were substantially identical to its prior findings. (Id. at p. 1202, 24 Cal.Rptr.3d 543.) Despite Los Angeles’s reliance on information that postdated its initial CEQA findings, the court found “the material facts have not changed and ... the two proceedings involve the same primary right and the same cause of action” because the reapproval of the general plan framework was primarily based on information and analysis contained in the original EIR. (Federation of Hillside, at p. 1204, 24 Cal.Rptr.3d 543.) We do not find these cases inconsistent. Both Castaic Lake and Ballona Wetlands cite Federation of Hillside. And neither disputes the holding in Federation of Hillside—namely, that res judicata barred the petitioners' challenges in the second proceeding because, in part, “the material facts had not changed and the issues asserted in the later proceeding could have been asserted in the prior proceeding.” (Ballona Wetlands, supra, 201 Cal.App.4th at p. 480, 134 Cal.Rptr.3d 194; see Castaic Lake, supra, 180 Cal.App.4th at p. 229, 103 Cal.Rptr.3d 124 [distinguishing Federation of Hillside on the basis that it “challenged the same EIR and the material facts had not changed”].) Ballona Wetlands likewise concluded the materials facts had not changed such that res judicata was appropriate. (Id. at p. 480, 134 Cal.Rptr.3d 194.) Castaic Lake, however, found material facts had changed and allowed the second petition to proceed. (Id. at p. 228, 103 Cal.Rptr.3d 124.) Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.8 Accordingly, the key question is whether the city council’s 2015 resolutions adopted new findings such that they constituted a new injury to appellants and a new wrong by the City. The city council’s 2010 resolutions found, in relevant part, “The Project, as proposed and with recommended conditions and mitigation measures, will be consistent with the General Plan and Zoning Ordinance.” Likewise, the 2015 resolutions found, in relevant part, “The Project, as proposed and with recommended conditions and mitigation measures, will be consistent with the General Plan and Zoning Ordinance.” There is no dispute the Project proposal remains unchanged. And both the 2010 and 2015 resolutions found the Project “will be consistent with the General Plan and Zoning Ordinance.” Accordingly, the city council’s 2015 resolutions raised a new issue only if the “recommended conditions and mitigation measures” included new or revised conditions or measures that are at issue in appellants' petition. In the Sierra Club action, the trial court reversed the EIR because it was deficient in that it (1) failed to address certain proposed mitigation measures in connection with traffic impacts; and (2) failed to support its cumulative noise impact analysis with substantial evidence, consider mitigation measures, or adopt a statement of overriding consideration. The revised EIR **256 addresses these two issues through revisions to (1) the executive summary matrix row regarding noise; (2) the section on noise, including thresholds of *702 significance, project impacts, and mitigation measures; (3) the section on transportation; (4) the section on cumulative effects of noise; and (5) revisions to the cumulative noise analysis appendix. The revised EIR also added two new appendices on transportation demand management and store information (operations, policies, transportation demand management measures). No other revisions were made. The revised EIR does not mention Policy LU-7, and appellants' petition does not challenge the traffic or noise analyses. Rather, the petition focuses on the Project’s location as incompatible with the goal of maximizing accessibility to residential areas. Consequently, even though the city council’s 2015 resolutions are “new” and revisions were made to the EIR and its discussion of mitigation measures, these revisions are unrelated to Policy LU-7. Moreover, all of appellants' arguments regarding Policy LU-7 are identical to those raised and argued before the city council in 2010. Concerns regarding the Project’s compliance with the General Plan and Policy LU-7 were raised, discussed, and evaluated in connection with the original EIR and Project approval. Nothing in the record suggests appellants' current petition materially differs from the General Plan consistency claim raised in the Sierra Club action or the issues raised in public hearings on the original EIR and Project approvals. Accordingly, appellants' petition is not based on changed material facts and raises the same claims as raised in the Sierra Club action. b.Privity [9]Appellants next argue no privity exists between them, Sierra Club and SCCA because they (1) were not parties to the Sierra Club litigation, (2) are unaffiliated with the Sierra Club or SCCA, (3) did not coordinate with Sierra Club or SCCA on the prior litigation, and (4) seek redress for both public and private harms. In response, the City contends appellants are in privity with Sierra Club and SCCA because both petitions seek to bring claims on behalf of the public against a public entity. [10][11] [12] [13]“ ‘ “The concept of privity ... refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights....’ ” ’ ” (Roberson, supra, 226 Cal.App.4th at p. 1511, 173 Cal.Rptr.3d 66, italics omitted.) “Over time, courts have embraced a somewhat broader, more practical concept of privity. ‘ “[T]o maintain the stability of judgments, insure expeditious trials,” prevent vexatious litigation, and “to serve the ends of justice,” courts are expanding the concept of privity beyond the classical definition to relationships “ ‘sufficiently close to afford application of the principle of preclusion.’ ” ’ [Citation.] For example, more recently our Supreme Court explained the basic *703 tenets of privity in broader terms: ‘As applied to questions of preclusion, privity requires the sharing of “an identity or community of interest,” with “adequate representation” of that interest in the first suit, and circumstances such that the nonparty “should reasonably have expected to be bound” by the first suit. [Citation.] A nonparty alleged to be in privity must have an interest so similar to the party’s interest that the party Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.9 acted as the nonparty’s “ ‘ “virtual representative” ’ ” in the first action.’ ” (Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, 276–277, 232 Cal.Rptr.3d 844.) “Put another way, privity, ‘ “as used in the context of res judicata **257 or collateral estoppel, does not embrace relationships between persons or entities, but rather it deals with a person’s relationship to the subject matter of the litigation.” ’ ” (Id. at p. 277, 232 Cal.Rptr.3d 844, italics omitted.) Here, both appellants' petition and the prior petition allege claims as, and on behalf of, citizens, taxpayers, property owners, and electors of Rohnert Park. While appellants argue their petition sets forth a private harm “ ‘because they will be directly and substantially affected by the adverse community impacts that may result from the Project,’ ” appellants fail to distinguish this harm from that alleged in the Sierra Club action. Nor do we see any meaningful distinction. A similar argument was asserted and rejected in Roberson, supra, 226 Cal.App.4th 1499, 173 Cal.Rptr.3d 66. In that matter, the City of Rialto approved construction of a large commercial retail center. (Id. at p. 1502, 173 Cal.Rptr.3d 66.) Rialto Citizens for Responsible Growth (Rialto Citizens) petitioned to invalidate the project approvals based in part on a defect in the city council hearing notice. (Id. at p. 1505, 173 Cal.Rptr.3d 66.) The trial court invalidated the approvals, which was then reversed on appeal. (Id. at p. 1506, 173 Cal.Rptr.3d 66.) Roberson subsequently filed a writ petition contesting the defect in the city council hearing notice. (Id. at p. 1504, 173 Cal.Rptr.3d 66.) Roberson argued he was not in privity with Rialto Citizens because “he brought his petition ‘in his own interest,’ while Rialto Citizens challenged the project approvals on public interest grounds.” (Id. at p. 1512, 173 Cal.Rptr.3d 66.) However, Roberson’s petition focused on “harm [to] the community” rather than harm to himself. (Id. at pp. 1512–1513, 173 Cal.Rptr.3d 66.) Accordingly, the court concluded “Roberson ‘ “ ‘ “had an identity or community of interest with, and adequate representation by” ’ ” ’ Rialto Citizens on his defective notice claim, both during the July 2008 city council hearings and in the Rialto Citizens action.” (Id. at p. 1513, 173 Cal.Rptr.3d 66.) Accordingly, when an alleged harm impacts the public rather than a specific entity, the privity analysis must focus on the “community of interest” rather than the relationship between the parties. To this end, we find Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 218 Cal.Rptr.3d 517 (Assn. of Irritated Residents), the case relied upon by appellants, distinguishable. While that case applied a more rigid interpretation of privity, it relied upon cases *704 involving specific harm to an entity, not a public harm.1 (Id. at p. 1232, 218 Cal.Rptr.3d 517, citing Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 86, 38 Cal.Rptr.3d 528 [action for personal injuries caused by asbestos exposure] & Lucido v. Superior Court (1990) 51 Cal.3d 335, 339, 272 Cal.Rptr. 767, 795 P.2d 1223 [prosecution for indecent exposure].) This case raises issues of harm to the community —namely, the detrimental impact to neighborhood supermarkets caused by having one located in a large commercial area. Despite their claims of personal harm, appellants do not allege any such harm apart from that incurred by the community. Likewise, Sierra Club and SCCA brought their petition on behalf of its members who are part of the community. **258 Within this framework, appellants' and Sierra Club’s and SCCA’s “ ‘ “relationship to the subject matter of the litigation” ’ ” is identical. (Castillo v. Glenair, Inc., supra, 23 Cal.App.5th at p. 277, 232 Cal.Rptr.3d 844, italics omitted.) Nor have appellants asserted their interest was not adequately represented in the Sierra Club litigation. (See, e.g., Assn. of Irritated Residents, supra, 11 Cal.App.5th at p. 1233, 218 Cal.Rptr.3d 517 [presumed common interests “effectively abdicated by lack of vigor in representation” because Sierra Club failed to timely appeal]; Castaic Lake, supra, 180 Cal.App.4th at p. 231, 103 Cal.Rptr.3d 124 [statement that environmental entity lacked funds to challenge the EIR “display[ed] an ‘abdication of the role of public agent’ [citation] and an abandonment of ‘its intention to represent the interests of the general public’ ”].) Barring such evidence, we must assume Sierra Club and SCCA diligently litigated their petition and made an informed decision not to pursue the General Plan consistency argument. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286, 149 Cal.Rptr.3d 491 [“The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance.”].) Accordingly, we Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.10 find appellants in privity with the petitioners in the Sierra Club action. 2. Public Policy Exception [14]Finally, appellants argue this court should consider their challenge because it raises a question of law regarding statutory interpretation. Even if the elements of res judicata are met, the California Supreme Court has held *705 “ ‘when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed.’ ” (City of Sacramento v. State of California (1990) 50 Cal.3d 51, 64, 266 Cal.Rptr. 139, 785 P.2d 522.) But in this instance, appellants are not asserting a question of law regarding statutory interpretation. Rather, they seek interpretation of an ordinance as it applies to the Project approval. Such a claim inherently requires the court to consider the facts and circumstances surrounding the Project. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 327, 140 Cal.Rptr.3d 459.) Accordingly, appellants' petition is barred by res judicata. Even assuming appellants' petition is not barred by res judicata, we cannot conclude no reasonable person could have found the Project consistent with the General Plan and Policy LU-7.2 **259 B. Project Consistency with Policy LU-7 ** III. DISPOSITION The judgment is affirmed. Defendant City of Rohnert Park may recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2), (5).) We concur: Humes, P.J. Banke, J. All Citations 27 Cal.App.5th 692, 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 Footnotes *After the court’s review of a request under California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is hereby ordered that the opinion should be published in the Official Reports. Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B. 1 In addition, the petitioners in Assn. of Irritated Residents submitted declarations indicating they were unaware of the prior action and had no reasonable expectation of being bound to that action, and Sierra Club failed to appeal the judgment due to a “ ‘clerical error.’ ” (Assn. of Irritated Residents, supra, 11 Cal.App.5th at pp. 1232–1233, 218 Cal.Rptr.3d 517.) The record does not suggest such evidence exists in this matter. 2 The parties also dispute whether appellants' petition is barred by the 90-day statute of limitations in Government Code section 65009. In arguing the 90-day limitations period bars appellants' petition, the City relies on Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 25 Cal.Rptr.3d 649, Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist. (2012) 206 Cal.App.4th 1036, 142 Cal.Rptr.3d 276, and City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 29 Cal.Rptr.2d 89. However, none of these cases are analogous because they involve initial approvals upon which later actions were based. (See Honig, at p. 528, 25 Cal.Rptr.3d 649 [obtained variance and then obtained building permit consistent with that variance]; Van de Kamps, at pp. 1047–1048, 142 Cal.Rptr.3d 276 [resolution approving project triggered statute of limitations rather than date lease was executed]; Chula Vista, at pp. 1720–1721, 29 Cal.Rptr.2d 89 [same].) Here, however, the initial city council approvals were vacated by this court and the City was required to reapprove the EIR and Project. Accordingly, we question whether those initial approvals could be considered a “final adjudicatory administrative decision.” (County of Atwell v. City of Rohnert Park, 27 Cal.App.5th 692 (2018) 238 Cal.Rptr.3d 248, 18 Cal. Daily Op. Serv. 9737, 2018 Daily Journal D.A.R. 9760 © 2019 Thomson Reuters. No claim to original U.S. Government Works.11 Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1327, 118 Cal.Rptr.3d 915, italics omitted.) However, we need not resolve this dispute in light of our other holdings herein. **See footnote *, ante. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. SheppardMullin Sheppard Mullin Richter & Hampton LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111-4109 415.434.9100 main 415.434.3947 main fax www.sheppardmullin.com December 21,2018 VIA E-MASL AND U.S. MAIL City of Rohnert Park Development Services Department Attn: Suzie Azevedo 130 Avram Avenue Rohnert Park, California 94928 sazevedo@rpcitv. orq Re: Request for Extension of Entitlements for Walmart Expansion Project On behalf of Walmart, Inc., I am writing to request a further one-year extension of the approved entitlements for the Walmart Expansion Project located at 4625 Redwood Drive in Rohnert Park. Enclosed is a completed Zoning and Land Use Application for the requested extension. The City is authorized to deduct the application fee from Walmart’s deposit account. I. Entitlement History for the Walmart Expansion Project As background, the following summarizes the project’s entitlement history. On January 13, 2015, the City Council re-approved the project’s entitlements, consisting of a Site Plan & Architectural Review/Environmental Impact Report (PL2009-02SR/EIR) and Sign Program (PL2010-09SR). Both entitlements were valid for an initial period of one year. Due to ongoing litigation against the project, the Planning Commission subsequently granted three one-year extensions of the entitlements on January 28, 2016 (Reso. No. 2016-03), January 12, 2017 (Reso. No. 2017-03), and January 11, 2018 (Reso. No. 2018-01). With these extensions, the current entitlement expiration date is January 13, 2019. II. The City’s Authority to Grant the Entitlement Extension Rohnert Park Municipal Code sections 17.25.035 and 17.27.040(H) authorize the City to grant one-year extensions of the Site Plan & Architectural Review and Sign Program, respectively, provided that an application for extension is submitted before the entitlement expiration date. This application is timely submitted before the January 13, 2019 expiration date. The City Attorney has confirmed that developers may apply for multiple entitlement extensions and that other projects in the City have received multiple extensions. Pursuant to these authorities, Walmart respectfully requests that the City grant a fourth (and what it expects to be final) one-year extension of the entitlements for the Walmart Expansion Project to January 13, 2020. EXHIBIT 2 City of Rohnert Park December 21,2018 Page 2 SheppardMullin III. Reasons for Granting the Entitlement Extension Walmart’s request for an entitlement extension is justified and should be granted for the following reasons. A. The Project Entitlements were in Litigation from January 2015 through November 2018 Following the City’s January 2015 re-approval of the project, opponents continued challenging the project approvals in Sierra Club et al. v. City of Rohnert Park (Sonoma County Superior Court, Case No. 248112). In addition, in March 2015, different opponents filed a new lawsuit challenging the project approvals in Nancy Atwell et al. v. City of Rohnert Park (Sonoma County Superior Court, Case No. 256891). For almost four years thereafter, the project entitlements remained in continuous litigation before the trial court and the court of appeal. Just last month, on November 26, 2018, the court of appeal resolved the last remaining case (Atwell), when it issued its remittitur certifying that the appellate decision had become final. All litigation against the project is now believed to be finally resolved. B. The Continuous Litigation Prevented Walmart From Permitting, Constructing, and Vesting Entitlements for the Project Like many other developers, Walmart was not willing to assume the risk of processing and obtaining permits, paying fees, satisfying exactions, and beginning construction of the project during active litigation, which could have resulted in the project approvals being invalidated. In addition, even if Walmart had started construction, petitioners likely would have sought a temporary restraining order or preliminary injunction to stop construction pending the resolution of the litigation. If granted, a construction stay would have imposed significant costs on Walmart and the project, such as, for example, the costs of de-mobilizing contractors, canceling construction and material contacts, stabilizing and protecting the construction site, and storing materials and equipment. C. Because the Litigation Concluded Only Recently, Walmart has not had Sufficient Time to Vest the Project Entitlements Because the litigation against the project only concluded last month on November 26, 2018, Walmart has not yet had sufficient time to process and obtain permits, start construction, and vest the project entitlements. Walmart would need additional time to prepare and submit construction plans, complete the plan check process with the appropriate City departments, make preparations to start construction, and obtain construction permits. In addition, starting construction at this time of the year is made difficult by the winter rainy season. D. Rohnert Park does not Provide for Litigation Tolling, so Serial Entitlement Extensions are Necessary Precisely because litigation makes it so difficult for developers to keep project entitlements active, many California jurisdictions provide for “litigation tolling.” These City of Rohnert Park December 21,2018 Page 3 SheppardMullin jurisdictions have either zoning code provisions or standard conditions of approval that toll the expiration date of entitlements during pending litigation. (I.e., these jurisdictions “stop the clock” on the entitlements while litigation is ongoing, and “restart the clock” when the litigation ends.) Rohnert Park, however, does not provide for litigation tolling. Moreover, the City imposes a short one-year lifespan on project entitlements. Under this scenario, Walmart and other developers who want to keep their project entitlements active during litigation must either (1) assume the significant risks and costs associated with proceeding in the face of litigation; or (2) apply for serial entitlement extensions until the litigation finally ends. As discussed above, the only feasible choice for Walmart was to apply for serial entitlement extensions. E. Denying Litigation-Related Extension Requests will Embolden Opponents and Allow them to Defeat any Project Simply by Filing Litigation Walmart understands and is sensitive to the Planning Commission’s concerns raised in previous years about granting serial entitlement extensions. In the absence of litigation tolling, however, developers like Walmart have no other option that adequately protects their interests. And given that the litigation is now concluded, Walmart anticipates that this will be its final extension request for the Walmart Expansion Project. If the Planning Commission denies this extension request, it will also set a bad precedent for future projects. Would-be opponents will know that they can defeat any project in Rohnert Park simply by filing a lawsuit, delaying the litigation as long as possible, and running out the clock until the project entitlements expire. In effect, project opponents will be able to win a “real world” victory in any legal challenge to a development project, even when their claims have no legal merit and are sure to be rejected by the courts. This will likely embolden project opponents, discourage investment in Rohnert Park, and generate additional frivolous litigation for the City to defend. * * * * * For all of these reasons, Walmart respectfully requests that the City grant a further one- year extension of the entitlements to January 13, 2020. Thank you for your consideration of this request. Walmart is proud to be a member of the Rohnert Park community and appreciates the City’s continued support and assistance with this long-planned project. Alexander L. Merritt for SHEPPARD MULLIN RICHTER & HAMPTON City of Rohnert Park December 21,2018 Page 4 SheppardMullin SMRH:488765272.1 Enclosure cc: Mary Grace Pawson, Rohnert Park, Development Services Director Deborah Quick, Morgan Lewis Michele Kenyon, Burke Williams Mary Kendall, Walmart