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

During the public discussion in the City Council about the drive through moratorium a year ago, in which I joined a dozen other people supporting the moratorium, CVS made the claim that the elderly and disabled needed drive through windows, Indeed, their Christmas Day lawsuit argues that CVS' power to insist upon a drive through window wherever they feel like putting one trumps the right of our City Government to ban drive through windows--and the carbon monoxide from idling engines, and traffic, and the endangerment of pedestrians, that a drive through would cause.

These seems to me to be ludicrous claims, and part of the astonishing rise of "Corporations are people" :Luster: argument that form the legal foundation of CVS specious argument. By arguing that it is magically a person who is being discriminated against, CVS, with revenue of $123 billion last year, is claiming that our tiny city is violating CVS' civil right to unrestrained profits by refusing to grant them a permit for a new pharmacy that contains a drive through window.

During last year's public comments, not a single Sebastopol citizen spoke in favor of CVS having a drive through window. One Sebastopol senior after another got up and chastised CVS' slick San Francisco lawyer for suggesting that CVS somehow needed a drive through window because it cared about the elderly and disabled in our community.

At the time, I noted that if CVS wanted to help the elderly and disabled with their prescriptions, they could simply create a delivery service from their existing pharmacy location. This would allow homebound folks to have their doctors phone in their prescriptions and have them delivered. Pharmacies might compete for which on provided the better delivery service.

The reason there is a lawsuit instead of a delivery service is because CVS and its high priced mouthpieces don't give a rat's ass abut the elderly or disabled or any of us in our community. As I mentioned in the earlier post today and Monday, this is about the many cars driving through Sebastopol heading elsewhere, and CVS making their drug selling business "car friendly" to weekenders, Wine Country tourists, and out of towners. Neither CVS, nor any major drug dealing corporation, will build a new pharmacy without a drive through window. The big profits are in the pharmaceuticals, not in the toilet paper, and CVS owns one of the world's largest pharmaceutical distribution business.

This lawsuit is about CVS' "civil rights" to profit by polluting our downtown.

This is about CVS bogus, bully's "right" to tell our elected representatives what they can and cannot regulate.

This is about CVS' "civil right" to impose the most malignant element of car-convenient culture in the heart of one of the most successfully pedestrian downtowns of any small city in the United States.

This is about We, the living breathing, feeling people of Sebastopol, vs they, the soul-less, greed obsessed Corporation.

This is about our community rising up on behalf of our families:heart: , our neighbors , and our ecology. :waccosun:

A prime example of CORPORATIONS V THE PEOPLE AND THE PLANET - here and everywhere;
a worthy battle wherever it's fought - and this is our town, this is where we take our stand.

Corporations want ONLY everything, regardless of anything, for one single reason: PROFITS FOR SHAREHOLDERS.

Move to Amend is a single issue group - obtaining the 28th Amendment to the US Constitution, to revoke corporate personhood and overturn Citizens United (the ironically named Supreme Court decision saying that unlimited money in campaign finance is allowable as 'free speech').
The county ballot measure - to urge the Board of Supervisors to support this and send that message to Congress - is about to be kicked off, but this Chase/CVS struggle will need to be continued to be fought, right here.

On the international scale, the Trans Pacific Partnership, or TPP, is the latest in corporate global trade agreements to give all privileges to the largest multi-nationals to extract the very most of humans and resources. Please be attentive to TPP in Congress to exert as much pressure as we can to beat it back.
Obama favors TPP.

Our remaining aware and engaged on Chase/CVS would be helpful to keep what remains of our little town.
Thanks for staying on this, Jonathan - and offering info and places and numbers and emails for input is very appreciated. Jude

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Posted in reply to the post by Peacetown Jonathan:

During the public discussion in the City Council about the drive through moratorium a year ago, in which I joined a dozen other people supporting the moratorium,...

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Posted in reply to the post by Peacetown Jonathan:

--and the carbon monoxide from idling engines, and traffic, and the endangerment of pedestrians, that a drive through would cause.

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It doesn't seem obvious that pulling up to drive through would cause more CO than oldsters taking 15 minutes to get into a parking space. And each trip is one-entry and exit, so the same as parking. Maybe more traffic if the CVS -drive though attracts more customers, but then that would mean in fact that many people would find it beneficial.

At least two of your arguments seem completely spurious. And since only very few wealthy people live near down town Sebastopol (or very old, who have lived in Sebastopol since before it became so enlightened), most people would need to drive to any kind of store that located there.

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These seems to me to be ludicrous claims, and part of the astonishing rise of "Corporations are people"

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If a singe person owned CVS, surely she would have the right to sue a city if she felt the city had changed the rules ex-post-facto. If two people were partners, surely they still have the right. So at what number of co-owners does the right to protect themselves disappear?

Responding to Spam1's earlier post:

Drive throughs are different than normal shopping, That's because many people leave their engines on, idling their cars, to keep the hear to AC or music going while waiting the 15-20 minutes that it takes for a prescription to be filled.

So instead of the 30 seconds or so that it takes for a car to pull in and park, and then pull out, an idling engine from waiting at the drive through or in the parking lot for fifteen minutes will emit CO2 for maybe ten to twenty times as long as a non-drive through car trip. This increased volume of toxic, asthma causing CO2 will pushed out into our downtown where I, and my family, and neighbors, among them seniors, are walking or shopping on our feet. Multiply that drive through car's impact by hundreds of drive through trips per day, and perhaps you might understand why city councils like ours, which are concerned with air quality, asthma, and pedestrian safety, object to drive throughs in our pedestrian friendly designed downtown.

It seems, Spam1, that you have an issue with the very concept of the decision by a large majority of citizens in this community to support, and vote for representatives who support, a pedestrian friendly downtown and a commitment to a greener way of life. Not to mention the greater safety for our children when they walk downtown, by taking measures like prioritizing the needs of pedestrians over the needs of drivers to move faster through downtown, or stay in their cars while shopping.

Do you find these intentions, shared by me, all five members of our City Council, and a majority of the voters in Sebastopol, to be objectionable? Or do you agree that these are values and outcomes, that our local government should try to advance?

As for your question, what is the difference between a multinational company with more than $100 billion and an individual or partnership, when it comes to having "civil rights" violated, a few things come to mind,

First, civil right is a misnomer and an insult to the type of rights that accrue to human beings, to citizens. MAKING AS MUCH MONEY AS YOU POSSIBLY CAN WHILE DAMAGING THE ENViRONMENT OR OTHER PEOPLES' LIVES IS NOT A CIVIL RIGHT.

It is an economic right. John Doe may be correct to think that if he could sell vodka to kids at the high school, he could make a big profit But that does not mean that our community, or our laws, are going to allow him the economic privilege of starting this business. We sometimes use government to regulate the economy in a way that works to the benefit of those who are governed, and our communities. Hence child labor laws. environmental regulation Zoning, bans on drive through windows.

The other aspect of this I want to respond to is the difference between an economic "taking" and an economic privilege. a taking is if a government chafed a law to say that the widget store you have had on Main street for the past ten years could no longer sell widgets, hence depriving you of your existing livelihood. This is different than your right to establish a new business at the traffic crossroads of or community and design it in such a way that it violates the general plan, and regulations, of the community it wants to do business in.

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Posted in reply to the post by Peacetown Jonathan:

Responding to Spam1's earlier post:

Drive throughs are different than normal shopping, That's because many people leave their engines on, idling their cars, to keep the hear to AC or music going while waiting the 15-20 minutes that it takes for a prescription to be filled.

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Assuming facts not in evidence. More likely, call in, pick it up at the drive through, leave.

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This increased volume of toxic, asthma causing CO2

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CO2, which you breath out every second? Only if given your assumption above. I guess CVS wants a drive through because they can service more people more quickly, not less. Perhaps you meant to say NO or O3? But even so, I would suggest less exhaust with a drive through, since it is in and out. but reasonable people might disagree, for example: https://www2.qsrmagazine.com/article...ssions-2.phtml

"A study released in May and conducted by wind engineering consulting services firm RWDI on behalf of Tim Hortons parent company TDL Group Corp. supports that claim. The study concluded that a Tim Hortons restaurant with no drive-thru actually produces higher emissions per vehicle than one with a drive-thru, because of emissions from starting up vehicles, traveling to and from parking spaces, and congestion that occurs in the parking lot. To provide perspective, the study says the greenhouse-gas emissions from a vehicle using a Tim Hortons drive-thru are less than 5 percent of those from a typical 30-minute commute. "

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It seems, Spam1, that you have an issue with the very concept of the decision by a large majority of citizens in this community ...
Do you find these intentions, shared by me, all five members of our City Council, and a majority of the voters in Sebastopol...

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Not necessarily, but the Constitution and Bill of Rights was created expressly to protect people (and by extensions, their collective business in the form of a corporation) from the Tyranny of the Majority!
Whether the passing of a moratorium on drive-thrus is such an ex-post-facto denying to legitimate business is something that might reasonably be adjudicated. But you seem to think that absolutely anything passed by a city council is a legitimate law that no group of individuals (even millions of individuals) can have any right to object to, and seek adjudication.

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First, .. <> ..design it in such a way that it violates the general plan, and regulations, of the community it wants to do business in.

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I presume the position of CVS is that they did none of the things above, the city council, not happy with what their previous regulations allowed, passed a new law after a group of individuals (our friends at CVS) followed all the old regulations and there appeared an outcome that they didn't like.

But what I very much object to the concept that if we can just get all the correct and proper laws passed, we can have a utopia... very fine until it is your ox that is gored. You seem willing to take from anyone that has more (like the folks that own the lot CVS is planning on building on) if you don't agree with them, regardless if they have followed the existing laws or not. A society that does such a thing has a name: Fascist.

So it is the corporations in our country being "oppressed" by the majority, which means we have become a fascist state?
You have been reading way too much Sarah Palin.

So here on the eve of Christmas, I feel compelled to express what I really think, on behalf of those poor, hungry fellow Americans who have so much less than most of us reading this at this moment.

In the face of the largest redistribution of wealth upwards, during the last 30 years, due to this "corporations are people" and "taxation and regulation and government are evil" rhetoric, fueled by billions of dollars in deceptive, lying ads and campaign contributions paid for by billionaires like the Koch and Mellon and Walton and Murdoch families, and their corporations and propaganda mills ("think tanks" and media outlets like Fox News), in the face of cutting food stamps and head start money for the tens of millions of poor American children, in the face of the highest level of poverty of any developed country on earth, with the lowest effective tax rate on corporations and rich people, in the face of the ecological disaster of fracking and climate change, in the face of the continually widening, and costly tax loopholes for multinational corporations and billionaires, in the face of a society so adeptly rigged that 95% of all income gain in the USA during the last three years has gone to the wealthiest 1%, in the face of all this, your rebuttal, that we, the people are practicing "fascism" when we exercise responsive, responsible government that works for our community, is nothing less than pathetic.

Fascism, for those who have been watching too much Fox News, is derived from a form of corporatism, enforced by an oppressive, dissent-crushing national security state,which suppresses the type of responsive, democratic government that we are working to practice here in Sebastopol, California.

This definition of fascism sounds a lot like what the Tea Party, and its adherents, would create if they were more successful. It seems to me that it is fascist thinking, not democracy, which accuses socially, morally and ecologically responsible government regulation as “taking” and evil.

We, the People, deserve and demand an economy regulated to protect the air we share and breathe, and an economy that manages to feed and clothe and house the poorest, neediest among us, at Christmas and year round.

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Posted in reply to the post by Peacetown Jonathan:

So it is the corporations in our country being "oppressed" by the majority, which means we have become a fascist state?
You have been reading way too much Sarah Palin.

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Maybe too much constitution.
My simple point, which you ignore, is when a Government Authority (GA) passes a set of regulations, and an individual, or collection of individuals (e.g. a corporation) follows those rules... and then the GA constituents complain of the result, the US constitution prohibits changing the rules after the fact. Whether this happened or not in the case of CVS is in dispute. I think CVS has the right, and the obligation to it's dispersed individual owners, to dispute the city if it feels the city has passed such an unconstitutional rule. You seem to think that the majority has the right to do whatever you feel is proper, regardless of a corporations' (and the individual who collectively own it...why do you persist in denying that corporations are collectively owned by individuals who themselves have rights?) right to challenge such a rule.
From our friends at Wikipedia:
Fascism supports a state-controlled economy that accepts a mix of private and public ownership over the means of production.^[167] Economic planning is applied to both the public and private sector in a fascist economy, and the prosperity of private enterprise depended on its acceptance of synchronizing itself with the fascist state's economic goals.^[168] It supports the profit motive. However it emphasizes that industries must uphold the national interest as superior to private profit.^[
Here I would substitute Local interest for National Interest.
The key point is the reduction of individual interest and of individual liberty.
Perhaps Marxist would be a more proper term for your view of how Sebastopol should be run.

Since my understanding of the Tea Party emphasizes state control of practically nothing, it's seems the polar opposite of Fascist. Libertarian would be a better match to Tea Party positions.

My only point was (and is): Sebastopol had zoning laws in place, and changed aspects of them after CVS started their project which met the zoning laws at the time. At the very least, CVS should be allowed to challenge whether that change was constitutionally allowed.

Earlier today, I posted a Huffington post blog entitled, "A Tea Party Christmas: An Oxymoron Causing Millions to Suffer," about the CVS debate, corporations are people argument, the The Tea Party, and the Republican's successful recent battle to deprive the poorest Americans of food stamps, Head Start funding, and unemployment benefits.

And just now, in response, a popular Tea Party-esque Huffpost blogger commented, "If you are dependent on government you are not truly free."

The debate continues. I invite my neighbors to reflect on the Tea Party's actions at Christmas time here, or on the comment section on Huffpost here.

This is what I wrote in response to the dependency comment:

I am curious whether you also feel this way about the many thousands of wealthy people, including some leading Tea Party Republicans, who receive government agricultural subsidies for NOT growing food? Have you expressed you objection to these exponentially larger subsidies, and your concern that subsidy recipients are "not truly free?"

How about those American retired from the Armed Services, with their families, receive a lifetime of pay and benefits from our government? Are you concerned that they “are not truly free?”

What about the “extraction industries,” who pay our federal government pennies on the market value dollar for drilling and mining and timber and mineral rights on national park land? Can the countless workers employed in these industries ever be “truly free?”

It is Christmas eve as I write this. From the polling that I read, I agree with what most American feel: that this concern over “dependency” for hungry children and their parents receiving food stamps, over the “dependency” caused by funding Head Start for America’s neediest children, or the “dependency” created by an extension of lifeline unemployment funds, or the “dependency” created in people who are receiving health insurance for the first time, is not a sincere concern.

And that this “dependency” argument is the latest propaganda frame in the class warfare game that continues to be waged by the very wealthiest, and greediest Americans and corporations.

Article 1, Section 9 of the US Constitution prohibits Congress from making any Ex Post Facto laws. That's the US Congress, not the California Legislature, and certainly not the Sebastopol City Council. You'll have to look further for your legal foundation.

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Posted in reply to the post by Peacemaker:

Article 1, Section 9 of the US Constitution prohibits Congress from making any Ex Post Facto laws. That's the US Congress, not the California Legislature, and certainly not the Sebastopol City Council. You'll have to look further for your legal foundation.

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perhaps true, no lawyer I. But a more interesting question...Given it supports an outcome you support, would you agree with a proposition that a government authority has the right to pass law making past behavior illegal, or changing (more to the point) changing zoning rules after a project has started, or even after it has finished?

Spam1, my reaction to your comment "My only point was (and is): Sebastopol had zoning laws in place, and changed aspects of them after CVS started their project which met the zoning laws at the time. At the very least, CVS should be allowed to challenge whether that change was constitutionally allowed."

- when certain historic laws are in place, that need to be changed to adapt to current conditions, it would be a "head in the sand" conclusion that the historic laws should not be changed.

- with regard to Chase/CVS changing the use of the old Chevy dealership, I think the Chase/CVS is a more intensive use of the property, which will generate alot more traffic, at an intersection that continually experiences more traffic, as West County becomes more desirable, to live here and to visit. The Chevy dealer catered to people getting their Chevies repaired, or buying new cars or trucks - all pretty costly outlays, translating to fewer patrons. The Chase/CVS, will generate alot more traffic, with people stopping for a candy bar, bottle of aspirin, make a deposit or withdrawal.

- the Chase/CVS buildings will be around for maybe 50 years. Not stopping them will mean an albatross will be at our main intersection for a long time. There is no reason we should not be smart and use whatever means are available to make intelligent long term planning decisions, such as forbidding drive thrus, and hopefully Cal Trans forbidding left turns going west on Hwy 12, both of which will constrain the likelihood of this turkey being built. It may be a moving target but a small town like Sebastopol must rightfully use any means available to keep corporate monsters out of our front yard. My apologies to albatrosses and turkeys.

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Posted in reply to the post by spam1:

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My only point was (and is): Sebastopol had zoning laws in place, and changed aspects of them after CVS started their project which met the zoning laws at the time. At the very least, CVS should be allowed to challenge whether that change was constitutionally allowed.

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I suppose you're asking if it is fair for governments to change the laws and have the changes be effective at some point in the past. My personal opinion is that it is not fair. I would not want government to do that to me. But I have no legal basis for my opinion. I haven't researched the California State Constitution or any Sonoma County or Sebastopol City regulation relating to this type of matter. From what I've seen, speaking generally, fairness is only tangentially important to government entities and then only under pressure. Of far more importance is what the government entity considers to be in its best interests. Hopefully that includes the interests of citizens, but that is certainly not guaranteed.

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Posted in reply to the post by spam1:

perhaps true, no lawyer I. But a more interesting question...Given it supports an outcome you support, would you agree with a proposition that a government authority has the right to pass law making past behavior illegal, or changing (more to the point) changing zoning rules after a project has started, or even after it has finished?

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Peacemaker, I know that you are not the source of the disinformation that is the CVS campaign to frame this issue in the context that the City Council "changed the deal" after it was approved. But I still feel compelled to correct this. It was the argument used by Kathleen Shaffer and Cathy Austin in their failed campaign, and it provides much of the rhetorical foundation for the bullying of our small city that is the CVS lawsuit.

A ban on drive through window's was part of our general plan for nearly 20 years. It was City regulation; and when it was passed, it applied to restaurants, because nobody anticipated pharmacies doing it. this is called a LOOPHOLE in the law.

The current moratorium closes a loophole, it does not change any rules.

CVS did NOT receive a building permit, and then have it revoked.

They received conditional approval on a design.

Sebastopol's Planning Commission REPEATEDLY insisted that CVS remove the drive through window.
The planning Commission, and City, repeatedly insisted that the design must adhere to a pedestrian friendly downtown., the design was found NOT to accomplish this, and it was only through the legally questionable maneuvering by Planning Director Kenyon Webster that the City Council was told, erroneously, that CVS met the Council's design concerns.

The rule changers here were CVS as they worked to bulldoze this through our city government. Here are the three ways that I can think of in which CVS attempted too change the rules:

1) The traffic report was suspiciously rigged and came up to a clearly false conclusion. An honest traffic report, one which adhered to the rules of actually measuring the existing traffic correctly (discussed in far more detail here)

2) Sebastopol's Planning Commission voted 4 to 1 to NOT approve a plan with a drive through window and a design that cut off our pedestrian downtown, instead of being part of it, as MANDATED by the city's General Plan. Knowing that Kenyon Webster would act as their lobbyist and advocate and insist that the duly authorized Planning Commission be over-ruled, CVS changed the rules, and went over the Planning Commission's head (despite the fact that they exist to assess such determinations) and got three of the five members of the Council to conditionally approve their design.

3) CVS did not request a building permit until AFTER our Council voted for a moratorium and review of all drive through windows, to close the loophole in the law. CVS did not have a permit and then have it revoked.

4) CVS' lawsuit is about changing the rules. It is a brazen, bully's attempt to force our Sebastopol to pay hundreds of thousands of dollars to protect our local government's fully authorized right--and obligation-- to regulate our ecology and pedestrian friendly downtown, on behalf of the taxpaying citizens who elect our City Council. More on the groundless, lawsuit here.

In essence, CVS is saying that "corporations are people with civil rights," and that right is to profit by doing what they please, despite our environment, public health, and local government.

CVS believes it will intimidate Sebastopol and "teach" small cities a lesson not to defy their money and might.

Let's support our Council Members and City staff in standing firm, and resisting their strong-arm tactics, on behalf of ourselves, our families, and our wonderful community. :waccosun:

Peacetown Jonathan. Thanks for the recognition. My attention was simply drawn to the matter of ex post facto laws, the US Constitution and applicability to lower jurisdictions. Not being a resident of Sebastopol, it would be rather presumptuous of me to be jumping into this long standing and complex issue within the town. I wish you all well in your quest to find fairness and justice for the people of Sebastopol.

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Posted in reply to the post by Peacetown Jonathan:

Peacemaker, I know that you are not the source of the disinformation that is the CVS campaign to frame this issue in the context that the City Council "changed the deal" after it was approved...

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The people of Sebastopol want a user-friendly downtown...one where walking is enjoyable and there are noteworthy business "worth the walk." The Barlow has extended the downtown walking desirability in that direction and the businesses there are apparently doing well and many people apparently ARE walking...but even if they are driving, the traffic is directed AWAY from the congested downtown area.

Right now the whole feeling of downtown ends at the intensely congested intersection of 116 and 12 where the CVS is proposed. If CVS wants this location so badly, I say make them come up with a progressive design that attracts people to cross the street and encourages walking traffic down Petaluma Ave.

Maybe CVS could pitch in to somehow improve congestion at this intersection for starters, so that pedestrians feel more insulated from the car traffic and the traffic is redirected somehow. So maybe you create another small park at the corner, landscaped with the CVS set back and with the drive thru and regular entrances thoughtfully placed to the back of the lot so cars are directed AWAY from the intersection and actually bypass it completely whether they are northbound on Petaluma Ave. or westbound on 12. Then there is no major addition to downtown congestion, cars going to CVS are kept a block away from the intersection, and people and businesses down Petaluma Ave. would have a landscaped buffer with pedestrians kept separated from traffic.

As I sat at the falafel place recently, I imagined how nice it would be to look across 12 and see a park there, or to be a driver entering the downtown on 12 and have people and a park there instead of two boarded up industrial structures.

While I personally dislike and distrust corporations, a CVS is already here, and it's in a location that certainly creates more traffic headed from the downtown intersection up 116 and back. So why not move them and their traffic to the edge of downtown, where incoming traffic can more readily access their facility, then revitalize their present location to make IT more pedestrian-friendly and business-friendly to extend foot traffic in that direction?

As much as I admire your positive and conciliatory point of view, my gut tells me that allowing Chase/CVS to build on that property will increase congestion and traffic. Wishing that " CVS could pitch in to somehow improve congestion at this intersection" is a non sequitur. How can you build thousands of sq ft of retail space and think it will improve traffic?

I am skeptical that people can be encouraged to walk across the Hwy 12/Petaluma Ave intersection due the amount of traffic - it's a natural barrier. A park? ... nice idea in the abstract, but it's doubtful the owners will donate the million dollar parcel for a park.

I think the ideal solution is to rehab the existing buildings into a center for small shops, maintaining the existing historic & small scale feel of the corner. The existing building placement close to the street and sidewalk create a buffer zone of sorts to the traffic, shielding the interior for parking & greenery, maybe some housing in the back. I favor the city maintaining high standards to keep out big boxes, forcing the owner to do something small and creative.

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Posted in reply to the post by PaulPoint:

The people of Sebastopol want a user-friendly downtown...one where walking is enjoyable and there are noteworthy business "worth the walk." The Barlow has extended the downtown walking desirability in that direction and the businesses there are apparently doing well and many people apparently ARE walking...but even if they are driving, the traffic is directed AWAY from the congested downtown area.

Right now the whole feeling of downtown ends at the intensely congested intersection of 116 and 12 where the CVS is proposed. If CVS wants this location so badly, I say make them come up with a progressive design that attracts people to cross the street and encourages walking traffic down Petaluma Ave.

Maybe CVS could pitch in to somehow improve congestion at this intersection for starters, so that pedestrians feel more insulated from the car traffic and the traffic is redirected somehow. So maybe you create another small park at the corner, landscaped with the CVS set back and with the drive thru and regular entrances thoughtfully placed to the back of the lot so cars are directed AWAY from the intersection and actually bypass it completely whether they are northbound on Petaluma Ave. or westbound on 12. Then there is no major addition to downtown congestion, cars going to CVS are kept a block away from the intersection, and people and businesses down Petaluma Ave. would have a landscaped buffer with pedestrians kept separated from traffic.

As I sat at the falafel place recently, I imagined how nice it would be to look across 12 and see a park there, or to be a driver entering the downtown on 12 and have people and a park there instead of two boarded up industrial structures.

While I personally dislike and distrust corporations, a CVS is already here, and it's in a location that certainly creates more traffic headed from the downtown intersection up 116 and back. So why not move them and their traffic to the edge of downtown, where incoming traffic can more readily access their facility, then revitalize their present location to make IT more pedestrian-friendly and business-friendly to extend foot traffic in that direction?

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We are not yet at the point where CVS is walking away from this. Indeed, if they chose to build this hideous design without a drive thru window, they could break ground on it. Because, thanks to Sebastopol's Planning Director Kenyon Webster, who insisted that an earlier City Council had no choice but to override Sebastopol's Planning Commission's decision NOT to approve the design, and because Kathleen "Under the radar screen" Shaffer acted as a cheerleader for the deal, the basic design could get a building permit--just not with a drive through window.

But, luckily for our community, CVS refuses to give up their drive through window. They are likely to walk away if they lose this lawsuit--as they probably will. As I have written about earlier, this is, and has always been about, the biggest drug dealer in the city insisting on their right to control the best corner in town. It has nothing to do with retail space, or tax revenue or jobs. There will be less of all of these if CVS moves to the new location.

Although this fact remained hidden from our City Council, thanks, again, to our Planning Director Kenyon Webster (whose salary and benefits cost taxpayers $150,000 per year), neglecting to provide any analysis of the economic impact of the CVS deal to our Council Members before 3 of them-including current Council Member Patrick Slayter (running for re-election next November), voted to override the PLanning Commission and approve a terrible design that violates the city's General Plan by walling off the Pellini corner from the rest of the pedestrian downtown area.

CVS' new location is solely about its "civil right" to decide where and how it will sell drugs to out of towers and people passing by, which means a drive through window, despite the fact that this is the most dangerous and congested corner in West Sonoma County. So these out of town travelers need not get out of their cars to pickup drugs en route through our town, Instead, they can idle their engines and spew carbon monoxide for 20 minutes and tie up traffic for their convenient pick-ups. About 2/3 of CVS' revenues comes from managing prescription drug plans for insurance companies

The only reason CVS is moving is because they want a drive through window at the traffic crossroads of our community. The expected growth in their profits that allow them to develop this site would come at our common expense, in the form o the traffic, air pollution, pedestrian danger, and diminishment of our community and its downtown area.

CVS was not granted a permit because they insisted on their drive through window. And so we have this lawsuit, which attempts to intimidate our elected representatives to sell out our pedestrian friendly thriving downtown environment, as Mr. Webster, and Ms. Shaffer, did, a few years ago. Thankfully they are standing tall. I encourage Wacco readers of this to let our current Council members know that you support their decision to defend this bullying lawsuit.

Actually, I believe we have this lawsuit because we approved their project and based upon that approval CVS invested millions in a piece of prime real estate, after which we changed the rules of the game. That is why we have this lawsuit. You may continue to write volumes but that basic fact remains unchanged.

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Posted in reply to the post by Peacetown Jonathan:

...CVS was not granted a permit because they insisted on their drive through window. And so we have this lawsuit, ...

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It is my understanding that the property was purchased on the "eve" of the election of the new council members. It is hard to imagine that this timing was cooincidental and that CVS was not prepared for a lawsuit. In other words, the political and practical environment for their project had already changed at the time of the property purchase.

I think your summary of the conditions is based on your selective interpretation and is not based on all of the "facts."

Ron

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Posted in reply to the post by photolite:

Actually, I believe we have this lawsuit because we approved their project and based upon that approval CVS invested millions in a piece of prime real estate, after which we changed the rules of the game. That is why we have this lawsuit. You may continue to write volumes but that basic fact remains unchanged.

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just another version of the same story, just a smaller set of the facts. you yourself wrote months ago that you personally didn't like the proposed development. the difference in point of view seems to boil down to what is believed to be allowable by law, previously agreed apon rules.

and thus, what is the wise course for our city leaders? they are following the democratic will of the last representative election, risking the fiscal wellbeing of sebastopol. are they fools? or couragous fighters for the soul of a much beloved small town? the court will decide.

personally i hope the corporate behemoth has to pay for their arrogance. given that it is the kings court, and corporate persons have the favor of the ruling ear, most likely police and fire services will need to be trimmed

Quote:

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Posted in reply to the post by photolite:

Actually, I believe we have this lawsuit because we approved their project and based upon that approval CVS invested millions in a piece of prime real estate, after which we changed the rules of the game. That is why we have this lawsuit. You may continue to write volumes but that basic fact remains unchanged.

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@photolite:
Regarding the suggestion that CVS spent millions to purchase this prime piece of real estate...I would like to suggest that it is quite possible that Chase already owns the property or the title, and if so, it will do what banks always do: simply transfer numbers from one place to another without having to invest any actual money in the purchase of the property. If that is the case, then Chase isn't out a single penny...they merely need to transfer the numbers back from the CVS ledger to the Chase bank ledger and "sell" the property to someone else by moving the numbers to THAT ledger and start charging ThEM interest.

The idea that banks invest actual monetary resources, and that these resources were somehow diverted from other investments is ridiculous...the banks are always floating 90%, since they only are required to have 10% in actual reserve when they "loan" money. Even if Chase had to obtain the property from another bank, they still never put up an actual cent to transfer title. Finally, Chase will get little sympathy from the many, many locals who were cheated out of their homes during the recent/ongoing housing debacle.

Regarding the suggestion that poor Chase played by the rules and then Sebastopol changed them to promote its agenda is PRECISELY what the banking industry and their corporate tentacles have historically done: change the rules in the middle of the game. The banks and corporations INVENTED situational ethics for crying out loud!!! I can't believe anyone can fault Sebastopol for wanting to tweak the agreement in their favor while they have some leverage...that IS playing by the rules...the rules the banks and the Federal Reserve have played by to control the economy as THEY see fit for the last hundred years. Just as banks strive to control the economic environment in which they must function, we as citizens have the right to strive to control the downtown environment we all utilize. Chase what matters!!!...did the folks at J.P. Morgan [owner of Chase Bank] not recognize the irony of their newfound motto?

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Posted in reply to the post by rossmen:

...personally i hope the corporate behemoth has to pay for their arrogance. given that it is the kings court, and corporate persons have the favor of the ruling ear, most likely police and fire services will need to be trimmed

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I presume the police and fire will need to be trimmed as a result of the costs of fighting the lawsuit while they were legally following the will of the people. Yes?

BTW, does anybody know if Sebastopol can recover their legal fees if they are found guilt-less?

Before these uninformed rumors gather any more traction, I want to shed a some reality on the situation. I attended budget hearings through last year's process ending in June, and continue to analyze Sebastopol's budget as an independent watchdog on behalf of Progressive Sebastopol and our community.

There have been no reductions in any city staffing level during the past year; indeed, there has been an expanded staff budget and new hires. There is a projected budget surplus in the coming year that is significant, and this includes the cost of the lawsuit. There will be no cutback in existing city services to pay for this.

On the subject of Sebastopol recovering legal costs from CVS' bullying and baseless lawsuit: it depends on whether or not a judge presiding over the case believes that it is indeed a bullying and baseless lawsuit. It also depends upon how long this case goes. CVS is clearly trying to wear down our city's resolve, and in a city that had fewer resources, and a less mobilized and informed electorate than ours (thanks, Wacco, Sepbastopol Tomorrow, our current City Council, and many of the people reading this!) , this would be working.

CVS is using a core page from the Corporate Power playbook: manipulating the legal system to win their way when they do not have the community or its elected representatives supporting them. They are playing their "corporations are people and their right to profit is a civil right" card. And they had already played their "fix the process" card by somehow managing to see that Sebastopol's planning Director Kenyon Webster rigged, or mishandled, the traffic report, to say that no Environmental Impact Statement would be necessary because there would magically be no significant impact on traffic. And then further rigging the process with Mr. Webster's unorthodox "Council Advisory" report, that our Council needed to override the city's duly-appointed Planning Commission, and find that, contrary to the Planning Commission's expert assessment, the CVS design met General Plan design guidelines consistent with a pedestrian friendly downtown.

CVS now believes that Sebastopol will back down in the face of their corporate might, local ecology and self-government for the people be damned. This tactic has worked, and continues to work, in most of the USA. But times are changing, and the playing field, in this new year, is shifting, as we transform to a society and system that works for the people within it, not just the mega-corproations who profit from it.

Why would you ever support or defend this ugly monstrosity of corporate greed right in our front yard?

I recall reading that Sebastopol had bans on drive thrus before this case. Wasn't Amys banned because they had a drive thru window? My understanding is that this is one of the foundations of Sebastopol's case against Chase/CVS. Something about the ban applied to restaurants because no one ever imagined that a drug store would want one? That the ban was redefined to include drug stores because this was the original intent? Remember, according to the City Plan, drug stores are located outside of the city center, in shopping centers, because the city center is intended to be pedestrian friendly. Drive thrus are not pedestrian friendly - drive thrus I've seen expressly prohibit you from walking up to it.

Quote:

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Posted in reply to the post by photolite:

Actually, I believe we have this lawsuit because we approved their project and based upon that approval CVS invested millions in a piece of prime real estate, after which we changed the rules of the game. That is why we have this lawsuit. You may continue to write volumes but that basic fact remains unchanged.

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To answer your first question, I refer you to Rossmen's reply to me, four posts before your own, which he begins with "you yourself wrote months ago that you personally didn't like the proposed development." So let's be clear that I do not support CVS/Chase. I long ago closed any accounts I had with Chase and refuse to do business with them.

He further states, " the difference in point of view seems to boil down to what is believed to be allowable by law, previously agreed apon (sic) rules."

He continues, " what is the wise course for our city leaders? they are following the democratic will of the last representative election, risking the fiscal wellbeing of sebastopol. are they fools? or couragous fighters for the soul of a much beloved small town? the court will decide."

Certainly the new City Council won an election, but hardly by anything close to a landslide so I question that "they are following the democratic will of the last representative election" as much as they are forwarding the agenda of the more activist slight majority that succeeded in turning out their supporters so as to tip the balance in their favor. Feels to many of us like tyranny by the majority, which was well foreseen as a negative consequence of a democracy and specifically addressed in our nation's founding documents.

Peacetown Jonathon asserts, "I want to shed a some reality on the situation. There is a projected budget surplus in the coming year that is significant, and this includes the cost of the lawsuit. There will be no cutback in existing city services to pay for this." What he neglects to state is the amount the city has actually allocated for this lawsuit, any additional amounts likely to actually cost us over and above the allocation and what impact those sums might have on the projected budget surplus and future city services. Woven throughout his copious dissertations is at least as much subjective opinion as is facts. Reality according to him. He is hardly in a position to unequivocally state "There will be no cutback in existing city services to pay for this". None of us is qualified to make such a proclamation and he has no official standing in our city government of which I am aware.

What I do support is equal application and fairness of our laws. I agree with most of what is posted here regarding what poor corporate citizens these companies have proven themselves to be. Aside from the fact that there exist examples of recent eyesores readily approved by the city in the downtown core, if our rules become a sliding scale based upon applicant popularity then we are on a dangerous path indeed. I have personally experienced the downside to such capricious standards as exercised by our planning department and Mr. Webster in particular that added thousands of dollars unnecessarily to a project of my own. My hope is that, aside from squandering our treasure on questionable lawsuits against a fiscal behemoth, we don't inadvertently cultivate a municipal culture that can victimize you or I when the winds change from this direction to that.

Quote:

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Posted in reply to the post by tommy:

Why would you ever support or defend this ugly monstrosity of corporate greed right in our front yard?

I recall reading that Sebastopol had bans on drive thrus before this case. Wasn't Amys banned because they had a drive thru window? My understanding is that this is one of the foundations of Sebastopol's case against Chase/CVS. Something about the ban applied to restaurants because no one ever imagined that a drug store would want one? That the ban was redefined to include drug stores because this was the original intent? Remember, according to the City Plan, drug stores are located outside of the city center, in shopping centers, because the city center is intended to be pedestrian friendly. Drive thrus are not pedestrian friendly - drive thrus I've seen expressly prohibit you from walking up to it.

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i think the city can handle the cost of the lawsuit, only a loss would trim services. in a civil suit the loser usually does pay the legal fees of the winner if the loser is the filer. so the city could collect legal costs from cvs. of course these things are most often settled out of court.

my guess is that legal costs are chump change for cvs, that they have lawyers on staff to deal with their multiple legal entanglements, and the greatest threat to their corporate persona is bad pr. so the quibbling of small town factions represented here on wacco are a big asset to them, "the community is divided".

so photolite don't give up the fight so easily. i also remember that you, as i, live outside city limits so can't vote for council members. the election was a landslide by the numbers, only the incumbent (a natural advantage), was close. give the current council credit for having the will to fight for the community who elected them. the problem with strict rule by law is that it fits everything into boxes, thus favoring boxes. cvs is a big, bad box designed to accumulate money. the truth is amy's could have appealed for a varience to the drive thru fast food ban for their test kitchen, and probably would have prevailed. community is supported by a system that looks at more than box filling ability.

Quote:

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Posted in reply to the post by Barry:

I presume the police and fire will need to be trimmed as a result of the costs of fighting the lawsuit while they were legally following the will of the people. Yes?

BTW, does anybody know if Sebastopol can recover their legal fees if they are found guilt-less?

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I don't know where to begin in responding to Photolite's comments quoted below.
Perhaps when Photolite writes that our City defending CVS' lawsuit:
"Feels to many of us like tyranny by the majority"

Standing up for We, the People, or, as Occupy framed it, the 99%, against the 1% who use their money, and lawyers, and the Corporations they control, to take an ever-expanding share of our economic pie, while destroying our ecology, is not tyranny of the majority. It is responsive government. It is what we elect representatives to do.

As for Photolite's suggestion that I am unqualified to state the facts of the city budget status: after more than 30 years as an investigative financial journalist for national media, I would say that after spending quite a few hours at last year's Sebastopol budget hearings, and reading the budget carefully, I feel qualified to make the statements that I did. If Photolite would like to present a single fact that contradicts my statement, like a city position that was cut, please post that info below. The fact, not opinion, is that police nor city nor fire staff was cut. This did not happen.

The third point I would like to respond to by Photolite is this characterization:
"aside from squandering our treasure on questionable lawsuits against a fiscal behemoth..."

Squandering. Really? "Questionable lawsuits?

There is nothing questionable about defending this lawsuit. What I find questionable is why anyone who believes in the right of local government, of the rights of human beings to regulate our environment, would object to our Council's responsible, and responsive, defense of this this lawsuit over the imaginary "civil rights" of a $100 billion corporation.

Why, Photolite, do you object to this?
What would you suggest that our City Council do instead?
What percentage of the citizens in our community do you think agree with you that our City Council should cave in on this lawsuit, resulting in a drive through window and a CVS at the most dangerous crossroads of our community?

Quote:

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Posted in reply to the post by photolite:

To answer your first question, I refer you to Rossmen's reply to me, four posts before your own, which he begins with "you yourself wrote months ago that you personally didn't like the proposed development." So let's be clear that I do not support CVS/Chase. I long ago closed any accounts I had with Chase and refuse to do business with them.

He further states, " the difference in point of view seems to boil down to what is believed to be allowable by law, previously agreed apon (sic) rules."

He continues, " what is the wise course for our city leaders? they are following the democratic will of the last representative election, risking the fiscal wellbeing of sebastopol. are they fools? or couragous fighters for the soul of a much beloved small town? the court will decide."

Certainly the new City Council won an election, but hardly by anything close to a landslide so I question that "they are following the democratic will of the last representative election" as much as they are forwarding the agenda of the more activist slight majority that succeeded in turning out their supporters so as to tip the balance in their favor. Feels to many of us like tyranny by the majority, which was well foreseen as a negative consequence of a democracy and specifically addressed in our nation's founding documents.

Peacetown Jonathon asserts, "I want to shed a some reality on the situation. There is a projected budget surplus in the coming year that is significant, and this includes the cost of the lawsuit. There will be no cutback in existing city services to pay for this." What he neglects to state is the amount the city has actually allocated for this lawsuit, any additional amounts likely to actually cost us over and above the allocation and what impact those sums might have on the projected budget surplus and future city services. Woven throughout his copious dissertations is at least as much subjective opinion as is facts. Reality according to him. He is hardly in a position to unequivocally state "There will be no cutback in existing city services to pay for this". None of us is qualified to make such a proclamation and he has no official standing in our city government of which I am aware.

What I do support is equal application and fairness of our laws. I agree with most of what is posted here regarding what poor corporate citizens these companies have proven themselves to be. Aside from the fact that there exist examples of recent eyesores readily approved by the city in the downtown core, if our rules become a sliding scale based upon applicant popularity then we are on a dangerous path indeed. I have personally experienced the downside to such capricious standards as exercised by our planning department and Mr. Webster in particular that added thousands of dollars unnecessarily to a project of my own. My hope is that, aside from squandering our treasure on questionable lawsuits against a fiscal behemoth, we don't inadvertently cultivate a municipal culture that can victimize you or I when the winds change from this direction to that.

---

Jonathan's analysis and resulting statement of the right of our community to decide, within legal limits, the disposition of the use of the land within our town is, in my opinion, valid and defensible.

CVS never completed the Design Review Process; they withdrew without resolving a number of key issues; then they licked their wounds and simply bought the disputed property. Subsequently they sued the City for putting in place an ordinance that was a logical step in pursuit of our goals for greenhouse gas emission limitations, which, by the way, is one of the issues in the Small Town Sebastopol lawsuit that charges that the mitigated negative declaration approved by the former city council was promulgated on a seriously flawed traffic study.

The delays by CVS allowed the City time to review situations that worked against the goals of our General Plan and long term city planning; it included the realization that further drive thrus eroded the accomplishment of these goals and principles.

CVS could not and should not have assumed that the clock had stopped on city planning when they decided it did. So I hold that their suit is bogus.

It is hoped that the judge in the suit in US district court will agree that the City has a right to pursue the best interests of our community, and has done so within the law.

Interesting that the attorney representing CVS in the Small Town suit has said publicly and in court that if CVS loses the drive thru issue, it "will go away". Neither she nor anyone in her firm represents CVS in the Federal Case, and she has declined to put that declaration in writing. So while we're not counting on it, it sure sounded good.

Earlier today, Sebastopol filed a motion for summary judgment, asking the Federal District Court in San Francisco to dismiss CVS' lawsuit. It is a great legal response--well argued and entirely convincing. It would surprise me if it is not successful.

I sent the document to Barry because it is too large for me to post. Hopefully he can add it to this strong so folks can read it themselves.

[ See it here. - Barry]

I especially like page 17-19; the section that shoots down this argument that the city is capriciously singling out CVS and therefore violating the $100 billion corporation's "civil rights" when our City Council adopted an urgency ordinance moratorium on drive through windows.

Earth to CVS: Enforcing our General plan, protecting our community and our environment is exactly what We, the People, ELECT our representatives to do.

A short excerpt: Sebastopol's motion, on page 17, explains, "In fact, adoption of urgency ordinances in response to pending projects is the rule, not the exception, under California law, concerning the adoption of emergency ordinances."

It then lays out established precedents supporting the legality of Sebastopol's actions. In my view, our tax dollars are being well spent! :thumbsup:

Now that the feed store burned down, that entire block from the corner Chevy dealership to the feed store is defunct. What a great fortune! A chance to reclaim that area as an extension of downtown, including a park on the corner surrounded by shops, offices, studios and such. Then people would be interested in hanging out there.

Yes... it is a very congested intersection. But maybe everyone is just used to it that way and sort of accepts that the traffic creates some sort of barrier. But look at how polite drivers are to foot traffic crossing the street between Whole Foods and the plaza...and even though the plaza has traffic on two sides and parking on two sides, the park is a wonderful oasis and marketplace and I barely notice the cars when I'm there...

Now, imagine another park where the dealership is. Why wouldn't the same configuration work there: traffic on two sides, with turn-in off-street parking? The parking lot could conceivably extend all the way down to where the feed store presently is, then turn back to Petaluma Ave. a distance from the intersection. It would provide considerable off-street parking with convenient access to the businesses facing the park, just like the plaza!!

Then we would have two small charming parks in our lovely town.

I hope CVS does lose and decide to not build and just GO AWAY. Then the city has the opportunity to plan and realize the sort of improvement to that area that fits with and enhances the downtown vibe of our lovely little town instead of accommodating a giant corporate store. Let's plan on making our town better. If you build it, we WILL come!

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.

Quote:

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Posted in reply to the post by Peacetown Jonathan:

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

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

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.

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!

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Posted in reply to the post by Peacetown Jonathan:

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

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"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.


:welcome::tiphat::here:

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!

Quote:

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Posted in reply to the post by Ted Pole:

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.


:welcome::tiphat::here:

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

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

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….

Quote:

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Posted in reply to the post by Peacetown Jonathan:

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:

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See it here.

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

Quote:

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Posted in reply to the post by Peacetown Jonathan:

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….

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

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Posted in reply to the post by gardenmaniac:

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

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

Quote:

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Posted in reply to the post by Helen Shane:

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

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Quote:

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Posted in reply to the post by gardenmaniac:

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

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

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). :waccosun:

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

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.

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 :
https://img194.imageshack.us/img194/...1206081330.png
Federal judge may dismiss CVS lawsuit against Sebastopol



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.