Full opinion text
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Fed.R.Civ.P.56) WANGER, District Judge. I. INTRODUCTION Defendants the City of Turlock and the Turlock City Council (collectively, “the City”) move for summary judgment against Plaintiffs Wal-Mart Stores, Inc., and Wal-Mart Real Estate Business Trust (collectively, “Wal-Mart”). Wal-Mart opposes the motion. II. PROCEDURAL HISTORY The complaint was filed on February 11, 2004. Doc. 1, Compl. The City moved for summary judgment on March 29, 2005. Doc. 50, Mot. for Summ. J.; Doc. 51, Mem. in Supp. Wal-Mart filed opposition on November 2, 2005. Doc. 155, Mem. in Opp. The City responded on December 12, 2005. Doc. 190, Resp. in Supp. Oral argument was heard on February 6, 2006, during which leave was granted to supplement the pleadings regarding whether Wal-Mart’s putative as-applied challenge to the Ordinance is ripe. Wal-Mart filed its supplemental response in opposition to summary judgment on February 21, 2006. Doc. 204, Suppl. Mem. in Opp. The City replied to the supplemental response on February 27, 2006. Doc. 207, Reply to Suppl. Mem. in Opp. Wal-Mart filed its second supplemental response in opposition to summary judgment on March 24, 2006. Doc. 216, Suppl. Mem.2d in Opp. III. BACKGROUND Wal-Mart states: “This litigation involves collusion between Defendants the City of Turlock and the Turlock City Council ... and local supermarkets and local producers of goods by amending the Turlock Zoning Code ... and the City’s Northwest Triangle Specific Plan[.]” Doc. 155, Mem. in Opp., 1. On November 20, 2003, the City Planning Commission (Commission) conducted a public hearing regarding “proposed amendments to the [City] zoning ordinance and the Northwest Triangle Specific Plan” that would: (a) “Define and classify large-scale (‘big box’) retail stores”; (b) “Require a Conditional Use Permit for certain large-scale retail stores (‘discount stores’ and ‘discount clubs’)”; and (c) “Prohibit ‘discount superstores’ which are large-scale (greater than 100,000 square feet) retail stores that also devote more than 5% of sales floor area to non-taxable (grocery) items — typically such stores contain a full service grocery department.” Doc. 191, Del’s Resp. to Pl.’s Statement of Disputed Facts in Opp. to Def.’s Mot. for Summ. J. [hereinafter, “Del’s RSDF”; undisputed unless otherwise noted] # 90. On November 20, 2003, after public comment, the Commission voted to recommend the proposed ordinance to the Council. Doc. 191, Def.’s RSDF #91. On December 16, 2003, and January 13, 2004, the Council adopted Ordinance Nos. 1015-CS and 1016 (the Ordinance). Doc. 165, Pl.’s Objections and Resp. to Def.’s Statement of Undisputed Facts in Opp. to Def.’s Mot. for Summ. J. [hereinafter “Pl.’s RSUF”; undisputed unless otherwise noted] # 1. The Ordinance amended the City’s Zoning Code and Northwest Triangle Specific Plan, and was codified in Sections 9-1-202 and 9-3-302 of the Turlock Municipal Code. Doc. 165, PL’s RSUF # 3. The Ordinance created three new categories of commercial retail land uses: “Discount Stores,” “Discount Clubs,” and “Discount Superstores.” Doc. 165, PL’s RSUF # 30. “Discount Stores” are: stores with off-street parking that usually offer a variety of customer services, centralized cashing, and a wide range of products. [“Discount Stores”] usually maintain long store hours seven (7) days a week. The stores are often the only ones on the site, but they can also be found in mutual operation with a related or unrelated garden center or service station. Discount stores are also sometimes found as separate parcels within a retail complex with their own dedicated parking. Doc. 165, PL’s RSUF # 31. A “Discount Club” is: a discount store or warehouse where shoppers pay a membership fee in order to take advantage of discounted prices on a wide variety of items such as food, clothing, tires, and appliances; many items are sold in large quantities or bulk. Doc. 165, PL’s RSUF # 33. A “Discount Superstore” is: ■ a store that is similar to a “Discount Store” ... with the exception that [it] also contain[s] a full-service grocery department under the same roof that shares entrances and exits with the discount store area. Such retail stores exceed 100,000 square feet of gross floor area and devote at least five percent (5%) of the total sales floor area to the sale of non-taxable merchandise.... These stores usually offer a variety of customer services, centralized cashing, and a wide range of products. They typically maintain long store hours seven (7) days a week. The stores are often the only ones on the site, but they can also be found in mutual operation with a related or unrelated garden center or service station. Discount superstores are also sometimes found as separate parcels within a retail complex with their own dedicated parking. Doc. 165, Pl.’s RSUF # 32. See also Ordinance No. 1016 (set forth in Decl. of Michael I. Cooke [hereinafter, “Cooke Deck”], Ex. B, 6). The Ordinance definitions of “Discount Store,” “Discount Club,” and “Discount Superstore” closely resemble the definitions of these terms in Trip Generation (6th ed.1997), a publication of the Institute of Transportation Engineers (ITE). See Cooke Deck, Ex. G; see also Doc. 165, Pk’s RSUF ## 39-41 (undisputed as to the ITE definitions of these terms). In Turlock, discount stores and discount clubs are permitted conditional uses in the C-C, C-H, and C-T commercial zones. Doc. 165, Pk’s RSUF # '# 34, 35. Discount superstores are not permitted uses, conditional or otherwise, in any'City zone. Doc. 165, Pk’s RSUF # 36. The Ordinance prohibits Plaintiff from siting a Wal-Mart Su-percenter (a “Discount Superstore”) in Turlock. Doc. 165, Pk’s RSUF # 105. The Ordinance’s Preamble makes the following findings: • WHEREAS, the [City] General Plan (including, but not limited to, policies 2.4-a, 2.4-g, 2.4-h, 2.4 — j, 2.4-k) establishes locational requirements for the [regional and neighborhood] retail centers: encouraging a number of neighborhood centers equally dispersed throughout the [C]ity while encouraging a concentration of regional shopping centers along the Highway 99/Countryside Drive corridor [Doc. 165, Pk’s RSUF #5 (Preamble text undisputed) ]; and • WHEREAS, General Plan policies promote and encourage vital neighborhood commercial districts that are evenly distributed throughout the city so that residents are able to meet their basic daily shopping needs at neighborhood shopping centers [Doc. 165, Pk’s RSUF # 6 (Preamble text undisputed) ]; and [¶] ... • WHEREAS, given the changes in the retail sector and the evolution toward ever-bigger stores, it is necessary that the zoning ordinance be amended to regulate larger retail establishments appropriately and to afford them adequate review [Doc. 165, PL’s RSUF # 7 (Preamble text undisputed) ]; and • WHEREAS, the [City] zoning ordinance (Title 9 of the [City] Municipal Code) has not kept pace with the evolution of the retail sector and fails to adequately distinguish the size, scale and scope of various retail activities; and [¶] ... • WHEREAS, the.establishment of discount superstores in Turlock is likely to negatively impact the vitality and economic viability of the [C]ity’s neighborhood commercial centers by drawing sales away from traditional supermarkets located in these centers [Doc. 165, Pk’s RSUF #9 (Preamble text undisputed) ]; and • WHEREAS, industry and academic studies indicate discount superstores rarely add any retail services currently not provided within a community, and that the majority of sales growth at a discount supercenter comes from a direct shift of dollars from existing retailers within a community, primarily from grocery stores [Doc. 165, Pl.’s RSUF # 10 (Preamble text undisputed) ]; and • WHEREAS, discount superstores compete directly with existing grocery stores that anchor neighborhood-serving commercial centers [Doc. 165, Pl.’s RSUF #11 (Preamble text undisputed) ]; and • WHEREAS, smaller stores within a neighborhood center rely upon the foot traffic generated by the grocery store for their existence and in neighborhood centers where the grocery store closes, vacancy rates typically increase and deterioration takes place in the remaining center [Doc. 165, Pl.’s RSUF # 12 (Preamble text undisputed) ]; and [¶] ... • WHEREAS, discount superstores adversely affect the viability of small-scale, pedestrian-friendly neighborhood commercial areas, contributing to the blight in these areas [Doc. 165, Pl.’s RSUF # 13 (Preamble text undisputed) ]; and • WHEREAS, the [Ordinance’s proposed zoning changes] are intended to preserve the [C]ity’s existing neighborhood-serving shopping centers that are centrally located within the community ... [Doc. 165, Pl.’s RSUF # 15 (Preamble text undisputed) ]; and • WHEREAS, the [C]ity’s current distribution of neighborhood shopping centers provides convenient shopping and employment in close proximity to most residential neighborhoods in Tur-lock, consistent with the Turlock General Plan [Doc. 165, Pl.’s RSUF # 16 (Preamble text undisputed) ]; and • WHEREAS, this distribution of shopping and employment creates a land-use pattern that reduces the need for vehicle trips and encourages walking and biking for shopping, services, and employment [Doc. 165, Pl.’s RSUF # 17 (Preamble text undisputed) ]. See also Cooke Decl., Ex. A (Ordinance No. 1015-CS); Wal-Mart Stores, Inc. v. City of Turlock, 138 Cal.App.4th 273, 283-84, 41 Cal.Rptr.3d 420 (2006). Between January 1, 2003, and January 26, 2005, Wal-Mart did not file an application with the City for a development permit. Doc. 165, Pl.’s RSUF # 95. On January 26, 2005, Doucet & Associates, Inc., an engineering firm, filed documents with the City on Wal-Mart’s behalf that the firm referred to as “an application for entitlements for a Wal-Mart Supercenter proposed for development in Turlock.” Doc. 165, PL’s RSUF #96. Defendants claim that the application was incomplete in that it did not include a floor plan, and the City could not determine whether the Ordinance would permit the proposed development or not. Id., PL’s RSUF # 97; see also id., PL’s RSUF # 98 (citing City Municipal Code Section 9-5-102: “An application for a permit ... shall be accompanied by maps, drawings, and data as necessary to evaluate the proposed request for conformance with the General Plan and the provisions of this chapter”). Wal-Mart alleges that the January 26, 2005, application “contained all information required in the City’s application.” Id., PL’s RSUF # 97 (response). On April 15, 2005, Wal-Mart filed a revised application with the City. The revised application included revisions of several of the documents originally submitted to the City. Doc. 191, Def.’s RSDF # 121. City Planning Manager Michael I. Cooke responded to Plaintiffs April 15, 2005, revised application on May 9, 2005, by letter, stating that the “revised application you provided contains the information I need to determine how the ordinance applies to your project.” Id., Def.’s RSDF # 123. The letter states that, based on the sales floor area figures, the project “is defined by [the City’s] large-scale retailer ordinance as a ‘Discount Superstore.’ Therefore, it is prohibited and I am returning your application fees herewith.” Id., Def.’s RSDF # 124. See Doc. 204, Suppl. Mem. in Opp., 2. Wal-Mart alleges its representatives originally began negotiations with the City in December 2002 to establish a Wal-Mart Supercenter in Turlock, Doc. 191, Def.’s RSDF # 1 (Response: “irrelevant”); that these negotiations appeared likely to succeed as late as July 2003, when Wal-Mart purchased the real property for the prospective Supercenter, id., Def.’s RSDF ## 9, 10 (Response: “irrelevant”); that about that time, local grocery store owners learned of Wal-Mart’s plans, and began lobbying the Council to exclude Wal-Mart from Turlock in order to protect themselves from Wal-Mart’s competition, id., Def.’s RSDF ## 11-65 (Response: “irrelevant”) ; and that their efforts were rewarded with the Ordinance, Doc. 155, Mem. in Opp., 8-11. Wal-Mart claims the City’s expressions of concern for air quality, traffic flows, and urban blight are pretextual, and the City’s true motive is to protect local retailers from competition in violation of the Commerce Clause and Equal Protection Clause of the United States Constitution, and the Equal Protection Clause of the California Constitution. Doc. 155, Mem. in Opp., 12-48. Wal-Mart also argues the Ordinance is void for vagueness under the United States Constitution’s Due Process Clauses. Id., 48-50. In a case brought by Wal-Mart in state court against the City, Case No. F047372, the California Court of Appeals for the Fifth Appellate District recently upheld the Ordinance, rejecting Wal-Mart’s challenges that the City unconstitutionally exceeded its police powers and failed to comply with the California Environmental Quality Act: (1) a city may exercise its police power to control and organize development within its boundaries as a means of serving the general welfare, (2)[the] City made a legitimate policy choice when it decided to organize development using neighborhood shopping centers dispersed throughout the city, (3) the [0]r-dinance was reasonably related to protecting that development choice, and (4) no showing was made that the restrictions significantly affected residents of surrounding communities. Accordingly, the restrictions in the ordinance bear a reasonable relationship to the general welfare and, thus, [the] City constitutionally exercised its police power. Wal-Mart, 138 Cal.App.4th at 279, 41 Cal.Rptr.3d 420. Wal-Mart did not raise, nor did the state court decide, its federal or state equal-protection, Commerce Clause, or void-for-vagueness claims. Wal-Mart, 138 Cal.App.4th at 299 n. 21, 41 Cal.Rptr.3d 420. IV. LEGAL STANDARD Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); Cal. v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts are “material” if they “might affect the outcome of the suit under the governing law.” Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The non-moving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The more implausible the claim or defense asserted by the non-moving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A court’s role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir.1996). V. ANALYSIS The complaint asserts seven claims for relief. Doc. 1, Compl., ¶¶ 28-63. The first alleges Wal-Mart Supercenters are situated similarly to a range of other retail formats — Discount Clubs, multi-roof shopping centers that offer goods and services similar to those available in a stand-alone Wal-Mart Supercenter, large-scale grocers, and Discount Stores — for purposes of preserving traffic flows and air quality and preventing urban blight, id., ¶¶ 29-32, but the Ordinance prohibits Wal-Mart Super-centers in Turlock and allows the other retail forms, in violation of the Equal Protection Clause of the United States Constitution. The second claim for relief alleges the disparate treatment alleged in the first claim for relief also violates the Equal Protection Clause of the California Constitution. Id., ¶¶ 36A10. The third claim for relief alleges Wal-Mart is an out-of-state corporation, and is the only retailer doing business in California that operates or plans to operate a Discount Superstore; the Ordinance only operates to impose restrictions on Wal-Mart, an out-of-state company; and the Ordinance therefore discriminates in purpose and effect in favor of in-state interests and against out-of-state interests, resulting in an unlawful burden on interstate commerce, in violation of the Commerce Clause of the United States Constitution. Id., ¶¶ 42^16. The fourth claim for relief alleges the Ordinance is unconstitutionally vague and uncertain, in that it: (1) provides prospective retailers no guidance regarding their categorization under the City’s zoning ordinances; (2) confers on the City almost unlimited discretion to determine how a large retailer should be classified; and (3) would inevitably lead to inconsistent application of the Ordinance. Id., ¶ 50. The Ordinance is also claimed to be vague and uncertain because the definition of “food and beverage sales,” on its face, places absolutely no restrictions on supermarkets or grocery stores, even though supermarkets and grocery stores may expand over 100,000 square feet, and devote more than 5% of their floor-space to non-taxable goods. Id. The fifth claim for relief alleges deprivation of constitutional and federal statutory civil rights under color of state law, and seeks damages under Title 42, Section 1983, of the United States Code. Attorneys’ fees are also sought under Section 1988. Id., ¶¶ 54-56. The sixth claim for relief seeks a declaration that the Ordinance is void, reasserting the California and federal equal-protection, Commerce Clause, and void-for-vagueness claims. Id., ¶¶ 57-60. The seventh claim for relief requests a temporary restraining order, preliminary injunction, and permanent injunction against enforcement of the unlawful Ordinance. Id., ¶¶ 61-63. The City moves for summary judgment as to all of Wal-Mart’s claims. Doc. 51, Mem. in Supp. of Mot. for Summ. J. A. Facial Versus As-Applied Challenge 1. Complaint Asserts Only Facial Challenge Wal-Mart claims it has asserted both facial and as-applied challenges to the Ordinance. Doc. 155, Mem. in Opp., 12-14; Doc. 216, Suppl. Mem.2d in Opp., 3-4. Wal-Mart argues the City has moved for summary judgment only as to Wal-Mart’s facial challenges, not its as-applied challenges, and summary judgment regarding the as-applied challenges is improper, even if summary judgment regarding the facial challenges is granted. Doc. 216, Suppl. Mem.2d in Opp., 2, 4-10. The complaint was filed on February 11, 2004. Doc. 1, Compl. The City did not deny Wal-Mart’s entitlement application until May 9, 2005. Doc. 191, Def.’s RSDF # 123. Wal-Mart has not amended its complaint. Wal-Mart argues “[t]he [c]om-plaint contains more than sufficient allegations to state a claim that application of the Ordinance to Wal-Mart violated the [Ejqual [Protection [Cjlauses in the federal and state constitutions.” Doc. 216, Suppl. Mem.2d in Opp., 3. Wal-Mart alleges [ ] it was “ready and able” to build a Supercenter in Turlock (Complaint ¶¶ 25-27) and [] the actions of the City, based on the Ordinance, prevented its development plan. Complaint, ¶ 25. What is more, Wal-Mart alleges [ ] it is similarly situated to other business entities that are treated differently (Complaint ¶¶ 29-32, 36-39), [ ] there is no rational basis for this differential treatment^] and the reasons for the discriminatory treatment are impermissible, including because the City acted with animus and bad faith toward Wal-Mart. Complaint ¶ [¶] 11-24, 29-32, 36-39. These allegations are sufficient to state an as[-] applied claim. Id., 4. An “as applied” challenge is a claim that the operation of a statute is unconstitutional in a particular case, while a “facial” challenge alleges the statute may rarely or never be constitutionally applied. When faced with a claim that application of a statute renders it unconstitutional, a court must analyze the statute as applied to the particular case, ie., how it operates in practice against the particular litigant and under the facts of the instant ease, not hypothetical facts in other situations. 16 C.J.S. Constitutional Law § 187. [A]n as-applied challenge claims [] the government’s conduct as permitted by a statute violated the defendant’s rights. The violation is specific to the facts of the defendant’s case, and the statute is flawed only to the extent it permitted the government to act in that case. In contrast, a facial challenge claims [ ] the defendant was acted upon pursuant to a statute that itself was constitutionally improper. The harm claimed is not a direct violation of the defendant’s constitutional rights, but rather a more abstract claim that the defendant was acted upon pursuant to a statute that has some kind of constitutional defect. Orrin S. Kerr, Congress, the Courts, and New Technologies: A Response to Professor Solove, 74 Fordham L.Rev. 779, 787 n. 50 (2005) (emphasis added). The February 11, 2004, complaint could not have, and did not, allege the City violated Wal-Mart’s constitutional rights in applying the Ordinance to deny Wal-Mart’s Supercenter permit application, because the City did not apply the Ordinance to WalMart’s Supercenter supplemented application until May 9, 2005. The complaint does not allege facts regarding the specific application of the Ordinance to Wal-Mart’s Supercenter permit application. The complaint alleges animus, bad faith, and impermissible discrimination only in the City’s enactment of the Ordinance, not its application to Wal-Mart. Wal-Mart’s sixth claim, for declaratory relief, alleges only facial challenges to the Ordinance: An actual controversy has arisen and now exists between Wal-Mart ... and [the City] ... relative to their respective rights and duties in the project in light of the course of conduct hereinbefore set forth and described. Wal-Mart contends [], in view of all attendant facts and circumstances, [the City] unlawfully adopted the Ordinance. Wal-Mart asserts [ ] [the City] cannot adopt the Ordinance because ... the Ordinance does not treat similarly situated retailers alike. Wal-Mart also asserts [ ] the Ordinance unlawfully and arbitrarily discriminates against out-of-state interests and ... violates the Commerce Clause. Wal-Mart further contends the Ordinance is unconstitutionally vague and uncertain. Doc. 1, Compl., ¶ 58 (emphasis added). The complaint solely presents a facial challenge to the Ordinance. Nor has the City consented, either expressly or by implication, to try Wal-Mart’s putative as-applied Ordinance challenges. Rule 15(b) of the Federal Rules of Civil Procedure provides in relevant part: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Rule 15(b), Fed.R.Civ.P. Faustin v. City and County of Denver, Colo., 423 F.3d 1192 (10th Cir.2005), held a complaint was impliedly amended to include facial challenges because Defendants never contested the characterization of Plaintiffs developing claims as a facial challenge to Denver’s policy during proceedings in the district court. Faustin, 423 F.3d at 1196. Here, the City has consistently objected to and argued Wal-Mart cannot assert an as-applied challenge to the Ordinance. See Doc. 51, Mem. in Supp. of Mot. for Summ. J., 21-24; Doc. 207, Reply to Suppl. Mem. in Opp., 1-6. Wal-Mart relies on Williams v. Vidmar, 367 F.Supp.2d 1265 (N.D.Cal.2005), to argue that under federal notice pleading standards, the complaint sufficiently alleges facts to support as-applied challenges to the Ordinance. Doc. 216, Suppl. Mem.2d in Opp., 4. In Williams, an elementary-school teacher alleged defendants allowed “similarly situated” teachers to include religious expression in their lessons and supplemental handouts, did not require them to submit their lesson plans and supplemental materials in advance, and did not limit their choices in the same way defendants limited plaintiffs. Plaintiff alleged defendants discriminated against him because of his religious beliefs in violation of the Equal Protection Clause. Williams, 367 F.Supp.2d at 1270. The court rejected defendants’ argument that “similarly situated teachers” did not sufficiently identify the class of persons referred to for an equal-protection claim, because the allegation was sufficient to put defendants on notice. In both Williams and Kiser v. Naperville, 227 F.Supp.2d 954 (N.D.Ill.2002), the courts considered the adequacy of notice provided by allegations that a claim had already arisen. Here, Wal-Mart’s complaint alleges constitutional deprivations only in the enactment, not application, of the Ordinance. No as-applied claim could be asserted when the complaint was filed, as the City had not taken action on Wal-Mart’s application. Wal-Mart could have amended the complaint to assert as-applied claims after May 9, 2005, when the Ordinance was applied to deny Wal-Mart’s Supercenter application, but did not. Wal-Mart’s complaint does not assert an as-applied challenge to the Ordinance. 2. Wal-Mart’s Putative As-Applied Challenge to the Ordinance a. Ripeness Even assuming, arguendo, an as-applied challenge had been asserted, the City argues Wal-Mart’s putative as-applied challenge was not ripe because Wal-Mart did not file a “complete” application for a permit to site a Supercenier in Tur-lock. Doc. 51, Mem. in Supp. of Mot. for Summ. J., 21-24. On April 15,2005, Wal-Mart filed a revised Supereenter permit application with the City. Doc. 191, Def.’s RSDF # 121. This application was denied on May 9, 2005. Id, Def.’s RSDF # 124. The City’s February 27, 2006, reply to Wal-Mart’s supplemental memorandum states the City: reserves briefing the issues of ripeness and claim preclusion, as those issues relate to the April 15, 2005, application. Given [ ] Wal-Mart has not moved to supplement its complaint to bmg facts relating to that application before the [cjourt, it is premature for the City to attempt to address such claims. Obviously, the City’s March 29, 2005, motion for summary judgment could not and did not address the question of whether City staffs subsequent denial of the April 15, 2005, application rendered Wal-Mart’s “as-applied” claims adequately ripe, or whether Wal-Mart should be excused from appealing staffs denial to the Planning Commission or the City Council. Doc. 207, Reply to Suppl. Mem. in Opp., 5. Wal-Mart contends the City Planning Manager’s denial on May 9, 2005, of Wal-Mart’s April 15, 2005, Supercenter permit application, and futility of further pursuit of a Supercenter permit, make ripe its putative as-applied claim. Doc. 204, Suppl. Mem. in Opp., 3-5. Ripeness requirements are imposed only on “as-applied” challenges, not to facial challenges. A constitutional challenge to land use regulations is ripe when a property owner or developer has received the planning commission’s final, definitive position regarding how it will apply disputed regulations to the particular land in question. A final decision by the government agency that inflicts a concrete harm on the landowner is required. Before a decision is final the landowner must have submitted one formal development plan and sought a variance from any regulations barring development in the proposed plan that have been denied. Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232 (9th Cir.1994). A landowner may avoid the final decision requirement if attempts to comply with that requirement would be futile. Herrington v. County of Sonoma, 857 F.2d 567, 569 (9th Cir.1988). A property owner cannot rely on the futility exception until he or she makes at least one meaningful application. Id. The same ripeness standard applies to takings, equal protection, and substantive due process claims. Id. i. Denial of Wal-Mart’s Supercenter Permit Application Between January 1, 2003, and January 26, 2005, Wal-Mart did not file any application with the City for any development permit. Doc. 165, Pl.’s RSUF # 95. On January 26, 2005, Doucet & Associates, Inc., an engineering firm, filed documents with the City on Wal-Mart’s behalf the firm described as “an application for entitlements for a Wal-Mart Supercenter proposed for development in Turlock.” Doc. 165, PL’s RSUF # 96. Defendants claim the application was incomplete in violation of Turlock Municipal Code Section 9-5-102, because it did not include a floor plan, and the City could not determine whether the Ordinance would permit the proposed development. Id., PL’s RSUF # 97; see also id., PL’s RSUF # 98 (citing City Municipal Code Section 9-5-102: “An application for a permit ... shall be accompanied by maps, drawings, and data as necessary to evaluate the proposed request for conformance with the General Plan and the provisions of this chapter”). Wal-Mart alleges the January 26,- 2005, application “contained all information required in the City’s application.” Id., PL’s RSUF # 97 (response). On April 15, 2005, Wal-Mart filed a revised application with the City. The revised application included revisions of several of the documents originally submitted to the City. Doc. 191, Def.’s RSDF # 121. City Planning Manager Michael I. Cooke responded to Plaintiffs April 15, 2005, revised application on May 9, 2005, by letter, stating the “revised application you provided contains the information I need to determine how the [Ordinance applies to your project.” Id., Def.’s RSDF # 123. Based on the sales floor area figures, the letter states the project “is defined by [the Ordinance] as a ‘Discount Superstore.’ Therefore, it is prohibited and I am returning your application fees herewith.” Id., Def.’s RSDF #124. See Doc. 204, Suppl. Mem. in Opp., 2. ii. Futility Exception The Turlock Municipal Code provides for administrative review of the City’s Su-percenter permit denial, and a variance-application procedure affording administrative review of denials. Doc. 51, Mem. in Supp. of Mot. for Summ. J., 23. Tur-lock Municipal Code Section 1-4-01 provides: Any action or decision of the Planning, Development Engineering, or Building and Safety Division of Community Development Services may be appealed to the Planning Commission. Any action or decision of the Planning Commission may be appealed to the City Council. Cooke Deck, Ex. F, 1. Wal-Mart did not appeal, to the Planning Commission or the City Council, the City Planning Manager’s denial of its Supercenter permit application. It did not seek a variance to permit the establishment of a Supercenter in Tur-lock. Doc. 204, Suppl. Mem. in Opp., 2. Wal-Mart argues its as-applied challenge is nonetheless ripe because it was futile either to appeal the denial or to seek a variance. Doc. 155, Mem. in Opp., 13-14; Doc. 204, Suppl. Mem. in Opp, 5-6. First, no City decisionmaking body has the authority to permit a Supercenter in Turlock. Doc. 204, Suppl. Mem. in Opp., 5-6. It is undisputed Superstores are “completely prohibited within the City of Turlock.” Doc. 191, Def.’s RSDF # 127. Second, “the summary judgment record leaves no doubt [ ] the City of Turlock ... is dead set against a Superstore in Tur-lock.” Doc. 204, Suppl. Mem. in Opp,, 6. Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir.1989), reviewed the dismissal for lack of ripeness of a suit alleging inverse condemnation and violations of substantive and procedural due process in the county’s denial of a development permit. Hoehne, 870 F.2d at 531. Plaintiffs proposed dividing their sixty-acre parcel into four lots with an average size of fifteen acres per lot, a use which zoning permitted. Hoehne, 870 F.2d at 530. The county planning commission nonetheless denied the application. Hoehne, 870 F.2d at 531. Plaintiffs appealed to the county board of supervisors, who affirmed the denial after a closed meeting. Id. The county subsequently amended its general plan land-use designation and zoning maps to impose a forty-acre minimum lot size on the Hoehne’s parcel. Id. The county’s motion for summary judgment was granted because the case was not ripe, since the board’s decision was not final and plaintiffs had not sought compensation under state law. Id. The Ninth Circuit reversed, finding the “uncontroverted facts demonstrate [ ] [the county] had reached a final decision on [plaintiffs’] application.... We are persuaded [ ] the [e]ounty has drawn the line, clearly and emphatically, as to the sole use to which [plaintiffs’] parcel may ever be put.” Hoehne, 870 F.2d at 533. It would have ... been futile for [plaintiffs] to seek a conditional use permit or a more favorable rezoning because in actually rezoning the tract to further restrict development, the supervisors themselves sent a clear and, we believe, final signal announcing their views as to the acceptable use of the property. [I]t would have been futile for [plaintiffs] to seek a[g]eneral [p]lan amendment in their favor, because the supervisors had amended the [g]eneral [p]lan in a manner clearly and unambiguously adverse to the application of the landowners. Hoehne, 870 F.2d at 535. Here, the City amended the Northwest Triangle Specific Plan by the Ordinance, Doc.. 165, Pl.’s RSUF # 3, to generally prohibit discount superstores, and the City admits the Ordinance absolutely prohibits a Wal-Mart Supercenter in Turlock. The Ordinance was enacted in direct response to Wal-Mart’s attempt to establish a Su-percenter in Turlock. This is a “clear and unambiguous” signal of the City’s intention to exclude discount superstores from Tur-lock. See Hoehne, 870 F.2d at 535. Any appeal by Wal-Mart of City Planning Manager Cooke’s denial of the Supereen-ter permit application had to be made to the Turlock Planning Commission and City Council. Doc. 51, Mem. in Supp. of Mot. for Summ. J., 23. The record establishes such an appeal would be an idle and futile act. Id. Before the futility exception applies, Wal-Mart was required to submit at least one application for a variance. Manufactured Home Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1035 (9th Cir.2005). It is undisputed Wal-Mart has not applied to the City for a variance. Doc. 204, Suppl. Mem. in Opp., 3-9. Wal-Mart argues it cannot obtain a variance because: (1) variances cannot be granted for a use or activity which is not otherwise expressly authorized by the zoning regulation governing the parcel of property, Doc. 204, Suppl. Mem. in Opp., 5 (citing California Government Code Section 65906); and (2) a project must be consistent with any specific plan adopted to further the objectives of a general plan, and here the Northwest Triangle Specific Plan, which the Ordinance amended, prohibits discount Superstores in Turlock, id., 6. California Government Code Section 65906 provides: Variances from the terms of the zoning ordinances shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property. The provisions of this section shall not apply to conditional use permits. Cal.Gov.Code § 65906 (emphasis added); see also Cooke Deck, Ex. A (text of Ordinance 1015-CS), 22 (“ ‘[vjariance’ shall mean a permit which grants a property owner relief from development standards to the zoning regulations of this Code when, because of [a] particular physical or topographical condition of the property, compliance would result in undue hardship to the owner (as distinguished from a mere inconvenience or desire to make more money)”). It is undisputed there are no zoning districts in Turlock where discount superstores are permitted. Doc. 165, PL’s RSUF # 36; Doc. 191, Def.’s RSDF # 128. California Government Code Section 65906 expressly prohibits the City from granting a variance to Wal-Mart for its application, because a discount superstore is not an authorized use under any Turlock zone regulation governing the property. See Milagra Ridge Partners, Ltd. v. City of Pacifica, 62 Cal.App.4th 108, 118-19, 72 Cal.Rptr.2d 394 (1998); Riggs v. City of Oxnard, 154 Cal.App.3d 526, 528-29, 201 Cal.Rptr. 291 (1984). Application for a variance is not a legally viable option. See Herrington, 857 F.2d at 570; Hoehne, 870 F.2d at 535. The futility exception excuses Wal-Mart from applying for a variance. Herrington, 857 F.2d at 570 & n. 2. It has not been suggested that a conditional use permit could have been obtained. b. Exhaustion of State Court Mandamus Review The City further asserts -Wal-Mart’s putative as-applied challenge is not ripe due to- Wal-Mart’s failure to seek judicial mandamus review of the City’s denial of Wal-Mart’s application under California Code of Civil Procedure Section 1094.5. Doc. 190, Resp. in Supp., 19; Doc. 204, Suppl. Mem. in Opp., 9. It is well established Section 1983 has no exhaustion-of-state-remédies requirement. Edwards v. Balisok, 520 U.S. 641, 649, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Patsy v. Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); American Consumer Pub. Ass’n, Inc. v. Margosian, 349 F.3d 1122, 1129 (9th Cir.2003). There is no exhaustion-of-state-remedies requirement for Wal-Mart’s equal-protection, Commerce Clause, or due-process challenges under Section 1983. c. Res Judicata Effect of the Denial of Walr-Mart’s Application Wal-Mart’s April 15, 2005, revised application to site a Wal-Mart Supercenter in Turlock was denied by the City on May 9, 2005. Doc. 191, Def.’s RSDF ## 121, 123, 124. The City argues Wal-Mart’s federal causes of action are barred by the res judicata effect of the City’s denial of Wal-Mart’s application. Doc. 190, Resp. in Supp., 19. “ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them. ‘Collateral estoppel,’ or ‘issue preclusion,’ precludes re-litigation of issues argued and decided in prior proceedings. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 896-97, 123 Cal.Rptr.2d 432, 51 P.3d 297 (2002). Res judicata may be applied to administrative agency actions when: (1) an administrative agency acts in a judicial capacity; (2) resolves disputed issues of fact properly before it; (3) which the parties have had an adequate opportunity to litigate. See Public Utility Dist. No. 1 of Snohomish County v. Federal Emergency Management Agency, 371 F.3d 701, 708 (9th Cir.2004). If these requirements are satisfied, the federal courts give the state agency’s decision the same preclusive effect the decision would have in that state’s courts. Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir.1999). Under California law, failure to challenge an agency’s decision rendered in its judicial capacity entitles that decision to preclusive effect in all subsequent actions. Johnson v. City of Loma Linda, 24 Cal.4th 61, 69, 99 Cal.Rptr.2d 316, 5 P.3d 874 (2000). An administrative agency decision has collateral estoppel effect when the decision and the agency’s prior proceedings possess a judicial character. In-dicia of proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. Pacific Lumber Co. v. State Water Resources Control Bd., 37 Cal.4th 921, 944, 38 Cal.Rptr.3d 220, 126 P.3d 1040 (2006) (citations omitted). The City Planning Manager was not acting in a quasi-judicial capacity when he, for the City, denied Wal-Mart’s Supercenter permit application without a hearing. The City Planning Manager denied Wal-Mart’s application after considering only the written application materials submitted by Wal-Mart on April 15, 2005. Doc. 191, Def.’s RSDF ## 123, 124. There was no hearing, no testimony, no opportunity to call or examine witnesses, or any other indicia of judicial capacity. The City’s denial of WalMart’s application is not entitled to res judicata effect in the federal courts. FEMA 371 F.3d at 708. Moreover, the futility exception excuses Wal-Mart’s failure to pursue state judicial mandamus. d. Statute of Limitations The City argues Wal-Mart cannot assert an as-applied challenge to the Ordinance because the limitations period has expired. Doc. 190, Resp. in Supp., 19; Doc. 207, Reply to Suppl. Mem. in Opp., 4. The limitations period for Section 1983 challenges to local government ordinances is two years. De Anza Properties X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1085 (9th Cir.1991) (citing Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)); Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir.2004) cert. denied sub nom. Kempton v. Maldonado, 544 U.S. 968, 125 S.Ct. 1725, 161 L.Ed.2d 615 (2005). The Ordinance was enacted on December 16, 2003, and January 13, 2004. Doc. 165, Pl.’s RSUF # 1. The complaint was filed on February 11, 2004. Wal-Mart’s facial and putative as-applied equal-protection and due-process Section 1983 challenges are timely. The City claims Wal-Mart cannot assert an as-applied Commerce Clause challenge to the Ordinance under Section 1983, and consequently any as-applied Commerce Clause challenge is barred by California Government Code Section 66499.37, which provides a ninety-day limitations period for as-applied challenges to denial of development permits. Doc. 207, Reply to Suppl. Mem. in Opp., 4 (citing Hensler v. City of Glendale, 8 Cal.4th 1, 21-28, 32 Cal.Rptr.2d 244, 876 P.2d 1043 (1994)). White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir.1985), cited by the City, states in dicta that Commerce Clause challenges cannot be brought under Section 1983. Williams, 810 F.2d at 849 (“[j]ust as the Supremacy Clause does not secure rights within the meaning of [Section] 1983, neither does the Commerce Clause”). However, Dennis v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991), holds alleged state violations of the Commerce Clause may be challenged under Section 1983. Dennis, 498 U.S. at 440, 111 S.Ct. 865; Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1177 (10th Cir.2001). If, arguendo, the complaint asserts an as-applied Commerce Clause challenge to the Ordinance, the challenge is timely and assertable under Section 1983. e. Facial Challenge The City claims if, arguendo, the complaint asserts an as-applied challenge, the outcome of the facial challenge will control the result of the as-applied claim because, as Wal-Mart concedes, the Ordinance left the City no discretion to approve any Su-percenter. Doc. 207, Reply to Suppl. Mem. in Opp., 3. Wal-Mart states: The denial of the Wal-Mart application was based exclusively on the Ordinance, which was intended to bar Wal-Mart from operating a Supercenter in Tur-lock. The Ordinance does not permit any discretion. It dictates an outright ban on Supercenters. Doc. 204, Suppl. Mem. in Opp., 13 (emphasis added); see also Doc. 165, PL’s RSUF # 105. Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9th Cir.2003), holds no as-applied challenge can be asserted where a statute grants no discretion to the administering agency: As the district court recognized, this is essentially a facial challenge to the inherently unequal criteria for moving the IPES Line contained in the 1987 Plan. The 1987 Plan enshrined the differential triggering requirements for the vacant lot equations of California and Nevada; the Agency had no discretion to deviate from the Plan’s provisions. In 1999, the Agency did not apply equal terms unequally — it applied inherently unequal terms in equal fashion. If the Association thought the inequality unlawful, its quarrel was with the terms of the 1987 Plan itself. Tahoe Sierra, 322 F.3d at 1080 n. 15; see also Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 689 (9th Cir.1993). The facial challenge subsumes Wal-Mart’s putative as-applied challenge as a matter of law, because the Ordinance prohibits the operation of a Wal-Mart Super-center in Turlock. B. Equal Protection Challenge 1. Fourteenth Amendment Wal-Mart argues the Ordinance is unconstitutional on three grounds: (1) it deprives Wal-Mart of the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 7, of the California, Constitution, Doc. 155, Mem. in Opp., 11-30; (2) it discriminates against interstate commerce, in violation of Article I, Section 8, Clause 3, of the United States Constitution (the “Commerce Clause”), id., 31-48; and (3) it is unconstitutionally vague, id., 48-50. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Because the Ordinance involves social and economic policy, and neither targets a suspect class nor impinges on a fundamental right, it is reviewed according to the “rational basis” standard. Rui One Corp. v. City of Berkeley, 371 F.3d 1137, 1156 (9th Cir.2004) (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Under this test, statutes are generally presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Fields v. Legacy Health System, 413 F.3d 943, 955 (9th Cir.2005). A legislative classification under rational basis review must be wholly irrational to violate equal protection. Id. The challenger bears the burden of negating every conceivable basis which might support the legislative classification, whether or not the basis has a foundation in the record. Id. A legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. a. Interests Allegedly Served by Ordinance The City claims as rational bases for the Ordinance: (1) to maintain Tur-lock’s neighborhood shopping area structure set forth in Turlock’s General Plan, and to avoid (2) increased traffic impacts and (3) blight that Defendants anticipate a discount superstore would cause. Doc. 51, Mem. in Supp. of Mot. for Summ. J., at 11. The City’s General Plan calls for small neighborhood shopping areas throughout the City and larger regional shopping areas on the periphery. The neighborhood shopping areas are intended to address the daily shopping needs of residents. The City relies on supermarkets to serve as anchor tenants for these neighborhood shopping centers. The neighborhood shopping centers are intended to cater to daily shopping needs and are located so as to be easily accessed by foot or bicycle as well as by car from the residential areas. They are only intended to draw their customers from the nearby neighborhoods. The large regional shopping areas are intended to draw their customers from a much larger area and are not intended for daily shopping. The regional shopping areas are intended for big-box retail stores, such as Target, Wal-Mart, or Costco, which customers will visit [less] frequently], The regional shopping areas are located on the periphery of the City, next to State Route 99, to provide easier access for customers coming from a greater distance, not just from Turlock itself, but also from the larger trade area beyond Turlock. The Ordinance furthers these General Plan policies. Cooke Deck, ¶4. The General Plan was adopted in March 1993 and revised in June 2002. Id., ¶2. The legislative objectives are broader than only air quality, traffic, and blight, on which WalMart’s complaint focuses. The neighborhood shopping areas’ preservation and the encouragement of foot and bicycle traffic over automobile use are state legislative objectives in the findings supporting the Ordinance and were recognized by the state appeals court. See Wal-Mart, 138 Cal.App.4th at 279, 41 Cal.Rptr.3d 420. The City’s stated concerns about a discount superstore, which combines general merchandise with an extra-large grocery store, inside Turlock are that it would: (1) draw customers away from the anchoring neighborhood supermarkets, resulting in chain-reactive urban blight as they succumb to discount superstore competition; (2) cause traffic congestion by increasing traffic flows in streets which were not designed to accommodate high traffic volume; and (3) increase automobile use and air pollution. Doc. 51, Mem. in Supp. of Mot. for Summ. J., at 7-18. Various independent studies are cited in the Ordinance’s legislative record: • A study commissioned by the City of Oakland shows the traffic impact of a discount superstore is greater than the traffic impact of a supermarket, a discount club, or a discount store. It also shows discount superstores cause blight and an increase in air pollution. Doc. 165, Pl.’s RSUF # 68 (admitted only that this study was entered into the record). • A study by VRPA Technologies, Inc., shows Wal-Mart Supercenters generate 34.5% more vehicle trips than had been previously estimated by the Institute of Transportation Engineers. Id,., Pl.’s RSUF #69 (admitted only that this study was entered into the record). • A report for the City of Fremont shows discount superstores generate more vehicle trips than discount clubs. Id., PL’s RSUF #70 (admitted only that this study was entered into the record). • A study by Strategic Economics discusses the store closures and negative effects on the City of Fremont’s business district the study stated would be caused by a discount superstore opening in the City of Fremont. Id., PL’s RSUF #71 (admitted only that this study was entered into the record). • A Contra Costa County study shows discount superstores are likely to cause blight and increased traffic. Id., PL’s RSUF # 72 (admitted only that this study was entered into the record). • A Mississippi State University study discusses the economic impacts of discount superstores on existing businesses. Id., PL’s RSUF # 73 (admitted only that this study was entered into the record). • An Oklahoma City report describes the relationship between urban blight and Wal-Mart Supercenters. Id., PL’s RSUF # 74 (admitted only that this study was entered into the record). • A Business Week article discusses store closures caused by Wal-Mart Supercenters. Id., PL’s RSUF #75 (admitted only that this article was entered into the record). b. State Interests Allegedly Served Are Legitimate Wal-Mart erroneously argues the prevention of urban blight is not a legitimate state interest. Doc. 155, Mem. in Opp., 18. Blight prevention is a legitimate state interest. Hispanic Taco Vendors of Washington v. City of Pasco, 994 F.2d 676, 679 (9th Cir.1993) (Commerce Clause); Burlington Northern R.R. Co. v. Department of Public Serv. Regulation, 763 F.2d 1106, 1109 (9th Cir.1985) (“[t]he standard for judging the constitutionality of a statute ... which regulates economic activity, is the same under the ... [E]qual [P]rotection or [C]ommerce [C]lauses”). See also Cuno v. DaimlerChrysler, Inc., 386 F.3d 738, 748 (6th Cir.2004) (citing Nordlinger v. Hahn, 505 U.S. 1, 12, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (“[t]he State has a legitimate interest in local neighborhood preservation, continuity, and stability”)). The other interests the City claims the Ordinance promotes are also legitimate state interests. See Nelson v. City of Selma, 881 F.2d 836, 839 (9th Cir.1989) (prevention of traffic congestion); Dodd v. Hood River County, 136 F.3d 1219, 1229-30 (9th Cir.1998) (prevention of air pollution). Wal-Mart argues the promotion of domestic business within a State, by discriminating against foreign corporations that wish to compete by doing business there, is not a legitimate state purpose. Doc. 155, Mem. in Opp., 18 (citing Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 880, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985)). Turlock’s Ordinance does not discriminate against foreign corporations. No retailer, whether local or foreign, can site a discount superstore in Turlock. Discount superstores, without regard to the identity of their owners or operators, are prohibited within Turlock. c. The Ordinance is Rationally Related to Legitimate State Interests Wal-Mart questions the rationality of the relationship between the Ordinance and its claimed purposes: The City’s explanation for the cause of blight or decay is erroneous. The City has it backwards. “Blight” is not caused by new development; rather, blight results from economic and community deficiencies which have resulted in a decline in employment, income, and wealth. The resulting loss of consumer demand can result in failures of neighborhood businesses, which may result in under-maintained or vacant buildings if appropriate re-tenanting does not occur. In short, losses of community vitality, and not any commercial “use,” cause blight. Doe. 155, Mem. in Opp., 19. It is well established a legislative choice is not subject to courtroom fact-finding on rational-basis review, and may be based on rational speculation unsupported by evidence or empirical data. Judicial review is at an end once the court identifies a plausible basis on which the legislature may have relied. Rui One Corp., 371 F.3d at 1155; accord, SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 680 (9th Cir.2002); Jackson Water Works, Inc. v. Public Utilities Comm’n of State of Cal., 793 F.2d 1090, 1094 (9th Cir.1986) (“[a]ll that is needed to uphold the state’s classification scheme is to find that there are ‘plausible,’ ‘arguable,’ or ‘conceivable’ reasons which may have been the basis for the distinction”); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367, 370 (11th Cir.1987) (“the federal courts do not sit as arbiters of the wisdom or utility” of economic legislation) (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981)). Wal-Mart argues the Ordinance’s distinctions between discount superstores, which are prohibited, and other retail formats bears no rational relation to any legitimate interest, and for that reason the Ordinance is invalid. Doc. 155, Mem. in Opp., at 19-27. According to Wal-Mart, the City has not offered a rational explanation of how the Ordinance’s distinctions advance the City’s stated goals of maintaining neighborhood shopping areas and proper traffic flows, and minimizing air pollution and urban blight. Id., 20. “[T]he City must provide a rational basis for differentiating between Discount Superstores and other permitted uses.” Id. The City sets forth its rational basis for the Ordinance’s distinctions in the memorandum in support of its motion for summary judgment: [Sjtudies in the legislative record showed [] Discount Superstores cause more traffic than Discount Stores, Discount Clubs, or supermarkets, and this provides a rational basis for prohibiting them. There was evidence in the record that people shop for groceries 2-3 times a week — more often than they visit a Discount Store or a Discount Club, [citation] Although Discount Clubs sell groceries, because they sell in bulk, the number of customer trips is less, [citation] Although Supermarkets are similar to Discount Superstores in that they generate more trips per week than Discount Stores and Discount Clubs, they do not attract customers from as large a trade area as Discount Superstores, which because of their size and the synergy between their supermarket and discount store components draw customers from a larger area and therefore cause more vehicle miles to be driven, [citation] This increased traffic also causes more air pollution, [citation] [¶] The record also included evidence that competition from a Discount Superstore would threaten the viability of existing neighborhood centers by causing the closure of the supermarkets that anchor those centers, thereby causing blight. This also provides a rational basis for prohibiting Discount Superstores, [citations] With regard to Turlock specifically, the City Council received information that one Discount Superstore opening in Turlock would likely cause two or three supermarkets to close, [citation] This would mean two or three neighborhood shopping centers would lose their anchors and those shopping centers would then likely slip into decay. Doc. 51, Mem. in Supp., 26-27; see also id., 11-13 (quoting Ordinance Preamble), 13-18 (quoting legislative record). The City summarizes its offered rational basis again in its response in support of the motion for summary judgment: Evidence in the record shows [ ] people shop for groceries two or three times a week, more frequently than they shop at Discount Stores (which do not have groceries) or Discount Clubs (which sell items in bulk and are therefore visited less frequently). For this reason, Discount Stores and Discount Clubs cause less traffic and less air pollution than Discount Superstores [citing Doc. 51, Mem. in Supp., 26]. Evidence in the record also shows [ ] although supermarkets attract customers with the same frequency as a Discount Superstore (each customer shopping two to three . times per week), a Discount Superstore, because of the synergy between its supermarket and Discount Store components, draws customers from over a greater distance, thereby resulting in more vehicle miles being driv