Behind the CVS Lawsuit: A Corporation's "Civil Right" to Profit by Screwing Sebastopol

[Tinkerbell]

Thank you very much for this post. I wasn't able to open the motion, and I would like very much to read it.
Can somebody help me? Thanks.

Earlier today, Sebastopol filed a motion for summary judgment
...
[ See it here. - Barry]

[Works for me. Click on this link. Anybody else having trouble? - Barry]

[Peacetown Jonathan]

An update: I have been advised that unfortunately, cities cannot receive their legal fees back, even if they prevail in lawsuits like this, except under very narrow circumstances (probably proving that the plaintiff knew full well they could never prevail--and proving this is probably next to impossible).

At the end of last week Petaluma revealed in the PD that they are facing the same kind of pressure, this time by Walgreens, to bend the will of their local government and install a drive through window. They are not being sued, just pressured, and they have resisted it.

This goes to the larger observation, that modern mega corporate pharmacies will not develop any new stores in small cities without drive throughs. Which means that CVS will, in all likelhood, take their marbles and go home (when it comes to moving their existing store and building this ill-conceived one), if they lose the drive through legal fight in Sebastopol.

I would like to point out, once again, that if CVS, and Walgreens, truly wants to serve out communities, they could simply initiate home delivery service for customers.

Here's that first two thirds of that article, with the appropriate title:

https://www.pressdemocrat.com/articl...cles/140109590

Proposed Petaluma Walgreens may be dead without drive-thru

A proposed drive-thru pharmacy across from Petaluma Valley Hospital appears “dead in the water” unless the developer submits a modified plan that complies with city rules banning most vehicular pick-up lanes.
Browman Development of Walnut Creek this week sought a new hearing before City Council members as soon as possible for another chance to try convince them a drive-thru is a public benefit. The council declined to reconsider the mattter.
The company was told in September that a new pharmacy was welcome, but that a drive-thru wasn’t. The city banned new drive-thru lanes several years ago in an effort to prevent pollution-causing emissions created by idling vehicles.
Earlier this year, the Petaluma Health Care District and Browman proposed a 2-acre retail development with a 7,500-square-foot office building and a 14,500-square-foot Walgreens drugstore on district-owned land at McDowell Boulevard and Lynch Creek Way.
They argued that the benefits to the community of a convenient drive-thru operation should override the ban.
After the Planning Commission in July rejected the requested zoning changes, developers appealed to the council, which in September sent the proposal back to the planning board with indications that it supports the overall project, but only without a drive-thru.
This week, Jim Stephens of Browman Development sought a second opportunity to sway the council. He said another hearing would allow them to explain why a drive-thru is so important to Walgreens and what the community benefits would be.
Last fall, the council suggested Walgreens explore other customer-convenience options similar to Raley’s grocery store’s curbside delivery program.
City Manager John Brown said he advised Stephens the council still wasn’t supportive of the drive-thru.
“I did talk with Mr. Stephens about getting out of the Walgreens mold and doing something that didn’t have a drive-thru window, and that’s apparently not the way Walgreens wants to do business in Petaluma,” he said.
City cannot recover its attorneys fees even if it prevails. No public agency can recover its fees for successfully defending a lawsuit except under very narrow - and difficult to prove - circumstances.

[Shepherd]

I want to appreciate Jonathan for doing such a good job of keeping us updated on this important issue and for expanding it beyond our small town of Sebastopol to what is happening in Petaluma. We live in one county and need to become more aware of standing together to impede such encroachments upon our local economy that take needed finances, energy, and services away from us.
Go Local!

An update: I have been advised that unfortunately, ...

[Ted Pole]

"Go Local!"

Indeed, and I am hoping that these local communities are taking all the necessary steps to encourage the creation of local pharmacies. How hard could that be?

Tuttle's seems nice.

UPDATE!

Wup! Spoke too soon. Tuttle's is actually part of the huge chain of Leader's Pharmacies. Plus, I notice that their hours are Monday through Friday from 9 to 6. Great for folks who never get sick on the weekend. For the rest of us, not so much.

[AJL]

I'd like to see encouragement or possibly requirements for walk-up / pedal-up windows so shoppers can get prescriptions or maybe even anything in the store without having to leave their bicycle or subject themselves to the indoor air quality of the business.
I know that bank drive through tellers are not allowed to help you unless you are in a car!

[Seabaz]

UPDATE!

Wup! Spoke too soon. Tuttle's is actually part of the huge chain of Leader's Pharmacies. Plus, I notice that their hours are Monday through Friday from 9 to 6. Great for folks who never get sick on the weekend. For the rest of us, not so much.

The one in sr or pet .
? They're not related.

[Sara S]

I still go to Lark's Drugs in Guerneville, even though I live over here now.........

[Peacetown Jonathan]

CVS has responded. They are doing it for the disabled, blind, and elderly, friends. That's why they say in their response.

Read for yourself here.

My commentary to follow. Please add your thoughts in reply field. Non lawyers and intuitives welcome….

[Barry]

CVS has responded. They are doing it for the disable, blind, and elderly, friends. That's why they say in their response.

Read for yourself. My commentary to follow. Please add your thoughts in reply field. Non lawyers and intuitives welcome :

I was not able to post it because the pdf is too large; asking Barry to please post it here:

See it here.

[gardenmaniac]

does this mean that my blind neighbors will be able to drive right up to the window? this comforts me greatly ...

CVS has responded. They are doing it for the disable, blind, and elderly, friends. That's why they say in their response.

Read for yourself here.

My commentary to follow. Please add your thoughts in reply field. Non lawyers and intuitives welcome….

[Helen Shane]

only if they have an official disabled person placard from the DMV...

does this mean that my blind neighbors will be able to drive right up to the window? this comforts me greatly ...

[gardenmaniac]

placard or not, I am struggling with the concept of a blind neighbor driving ...

only if they have an official disabled person placard from the DMV...

[Dixon]

does this mean that my blind neighbors will be able to drive right up to the window?

Yes, and they're gonna install a wonderful loudspeaker system for the deaf, and play hip-hop on it for the
elderly.

[Peacetown Jonathan]

The legal action continues. The city has responded to CVS' response to Sebastopol's request for a summary judgment in the case. Reading it leaves me feeling that our lawyers are doing an excellent job. (Having an attorney be our City Manager is reaping unexpected benefits here).

Basically, CVS has said that Sebastopol's City Council did not have the power to enact a moratorium on drive through windows, when it did, because this moratorium (now a ban) deprived them of their right to put their drive through window where they wanted it, environmental or zoning consequences be damned.

The latest city response notes, and cites numerous California cases as precedents, in which courts must grant wide latitude, and not interfere, with discretionary zoning decisions made by local governments.

See for yourself--some persuasive reading!

I am attaching, or trying to attach, the City's filing from earlier today here:

Link to City's Feb 6th response

[haammer]

I love that Sebastopol is able to come together to collaborate on issues like this, especially since in this case we are against a leviathan corporation! Thanks to everyone for participating in this discussion.

[Peacetown Jonathan]

Thank Goddess, friends, for an independent lower court judiciary! This judge knows intimidating corporate bullshit when he sees it …I guess the claim that this was being done to (ahem) provide access to the disabled (instead of a home delivery service that might actually do this without a drive through window), and hence the federal jurisdiction because of the federal American with Disabilities Act A huuuuuge stretch and one that this judge seems unwilling to make on behalf of that little knob defender of the disabled, CVS.

Recent coverage from here :

Federal judge may dismiss CVS lawsuit against Sebastopol

By MARY CALLAHAN
THE PRESS DEMOCRAT

February 17, 2014, 2:38 PM

A federal judge handling the CVS Pharmacy lawsuit against the city of Sebastopol may dismiss the case for lack of jurisdiction, suggesting the matter properly belongs in state court.

U.S. District Court Judge Edward M. Chen announced his reservations about the case in an order signed last week inviting the parties to argue he's wrong to worry.

But the notice creates an uncertain future for CVS's legal fight over the city's decision to stop issuing drive-thru window permits — a move the national drug store chain claims was designed to torpedo its controversial plans for a downtown project.

With the development in the case last Wednesday, “it's rather obvious that CVS has some issues that it will need to wrestle with,” City Attorney Larry McLaughlin said.

CVS, through its California subsidiary, Longs Drug Stores, and Armstrong Development Properties Inc., a developer of CVS Pharmacy, and J.P. Morgan Chase Bank sites around the country, had filed its case in state court in the first place.

But, for reasons unknown, CVS attorneys had the case dismissed so they could file in federal court, McLaughlin said.

The state suit was dismissed “with prejudice,” meaning CVS is prevented from refiling the same case in state court, McLaughlin suit. Whether a modified suit could still be filed at the state level is not clear.

But McLaughlin said the city and the outside legal firm hired to handle the CVS litigation are still analyzing the judge's order to determine what the potential outcomes are.

“We are unclear about how it would all play out exactly,” said Edward Grutzmacher, lead attorney for the city. “I don't want to speculate too much about what happens if or when the federal court decides there is no federal jurisdiction.”

At issue is whether the City Council, in the winter of 2012, properly put a freeze on building permits for projects with drive-thru windows when only one such project was pending: the CVS/Chase Bank development that had been granted design approval the previous summer after two dozen acrimonious hearings over 16 months.

CVS claims the moratorium, adopted soon after November 2012 city elections, was an effort by a newly shaped council to undo what the previous council majority had agreed several months earlier to permit.

But city officials say the decision reflected an interest in creating consistency among regulations governing drive-thru service windows.

A pre-existing ban prohibited drive-thru windows for new restaurants as part of a a statewide trend driven by urban planning objectives and concerns about green-house gas emissions, among others. When Councilman Patrick Slayter proposed the city consider whether other uses should be prohibited, the council decided a moratorium on the drive-thrus was appropriate until a final decision was made.

Officials also say it wasn't at all clear at the time that CVS and its developers still planned to pursue the hotly contested project.
A CVS representative had promised months earlier, when the general design was approved in August 2012, to return to the city with required adjustments in the ensuing weeks. By the following December, city officials had not been contacted.
Even if CVS and Armstrong decide to build, Councilman Michael Kyes says now, the expectation is they would just proceed without the drive-thru windows.

“Certainly we didn't think that CVS wouldn't build because of it,” said Kyes, who was then mayor.

Instead, CVS and its partners sued the city, saying the moratorium had not been legally adopted and that the public health, safety and design concerns used as justification for the move contradicted findings earlier used to approve the proposal.

The plaintiffs' first suit in state court sought to invalidate the city's initial 45-day moratorium. It was then expanded to include a 10 1/2-month extension the City Council approved about a month later.

When CVS moved the case to federal court, it was forced to drop the 45-day moratorium from the case because of a statute of limitations, McLaughlin said. But it was later amended to include a subsequent, yearlong extension on the moratorium approved by the council last November.

If the federal case is dismissed, it may be possible for that second extension to form the basis for a new state suit, though nothing is clear yet, McLaughlin said.

Judge Chen ordered CVS and the city to file final briefings on the issue of jurisdiction by Friday and should decide relatively soon after if the case will go forward, Grutzmacher said.

The City Council is scheduled to meet in closed session at 4 p.m. Tuesday to discuss its options.