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In Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (2012) 2012 Cal.App.LEXIS 1138 (Tuolumne Jobs), the Fifth District Court of Appeal clarified that an effort by registered voters to qualify an initiative petition for the ballot does not foreclose the need for CEQA review unless the voters approve the initiative during an election.

In Tuolumne Jobs, supporters of a WalMart Supercenter circulated an initiative petition to authorize Walmart to construct and operate the Supercenter.  The City of Sonora confirmed that the initiative petition received over 15 percent of signatures from registered voters and, therefore, qualified for the ballot.  Pursuant to Elections Code section 9214, the city council considered whether it should adopt the initiative as an ordinance or submit the initiative for inclusion on the ballot.  The city council voted to adopt the ordinance without placing it on the ballot.   Petitioners filed suit alleging that the City’s action violated CEQA.

The court began its discussion by stating that “[i]t is settled that when a development project is approved by means of a ballot initiative placed on the ballot by voters and adopted by them in an election, the project is exempt from environmental review under the California Environmental Quality Act.”  However, the court concluded that the City’s action was not exempt from CEQA.  While environmental review can be avoided when the voters choose to bypass it, the court held that it cannot be avoided when the lead agency chooses to bypass the voters.  The published portion of the court’s decision addressed its holding on this issue because it created a split of authority with Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961 (Native American Sacred Site).

In Native American Sacred Site, the court concluded that a city council’s decision whether to adopt an initiative or place it on the ballot is a ministerial act.  Here, the court disagreed.  The court explained that the city council had a discretionary choice whether to unilaterally adopt the initiative or submit it to the people for a vote.  The court agreed that acting to place the measure on the ballot was a ministerial act, but a city council’s decision to adopt an initiative without a vote essentially created an “exception to the mandatory duty to hold an election.”  The court held that “[t]aking advantage of the exception is discretionary, not ministerial.”

The court explained that in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 (Sierra Madre), the California Supreme Court determined that even if an election is held and a majority of voters expresses its will to let a project go forward, CEQA review is still required if it was the city council that chose to put the initiative on the ballot.  In consideration of Sierra Madre, the court stated that “[i]t is even clearer that CEQA applies when a mere 15 percent of the voters has expressed support for the initiative and the city council chooses to approve the project without an election.”  The court found the plain language of CEQA Guidelines section 15378(b)(3) supported this conclusion because it only applies to “[t]he submittal of proposals to a vote of the people…”  And, the city council’s action resulted in the City avoiding the requirement for a vote of the people.

In reaching its holding, the court recognized “CEQA compliance may often be impossible” before the Elections Code time limit for a municipality to decide whether to adopt an initiative as an alternative to placing the initiative on the ballot.  “In effect, this means that a city council will be compelled to hold an election in all cases in which environmental review has not begun when the voters’ petition is presented.”  However, the court explained that “[t]he results in a case like this, in which statutes point in different directions and must be reconciled with one another, are bound to be imperfect.”  The court concluded that, as compared to Native American Sacred Site, its “solution is the better one [] because it avoids the anomalous consequence of allowing a small fraction of a local electorate, combined with a majority of a city council, to nullify state law under conditions in which the local electorate as a whole has not been given a voice.”

Key Point:

While recognizing its holding conflicts with Native American Sacred Site, the court concluded a municipality cannot forgo CEQA review when it elects to adopt a voter sponsored initiative as an alternative to putting the initiative on the ballot.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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