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State Supreme Court to Consider Whether Ballot Initiative Process Can Bypass CEQA

The California Supreme Court has unanimously decided to accept review of Tuolumne Jobs & Small Business Alliance v. Superior Court. The plaintiff alleges that the City of Sonora violated CEQA when it adopted a voter-sponsored initiative as an ordinance to approve expansion of a Wal-Mart into a 24-hour “supercenter” without submitting the measure to a popular vote and without completing environmental review.  The Supreme Court’s ultimate ruling in this case will clarify whether adoption of such an ordinance is a “ministerial project” exempt from CEQA.

CEQA requires environmental review before a public agency approves any “project” that has the potential to adversely affect the environment.  However, CEQA applies only to “discretionary” agency approvals; when an agency lacks a choice in how to proceed, its actions may be characterized as “ministerial actions” for which CEQA review is not required.

The main question in Tuolumne Jobs is whether a city council’s outright adoption of a voter-sponsored initiative measure, without submitting that measure to a popular vote, was a discretionary act which required CEQA review prior to approval.  The Appellate Court held that it was a discretionary act subject to CEQA, and that ruling is now under consideration by the Supreme Court.

In Tuolumne Jobs, the City of Sonora initially prepared an environmental impact report (“EIR”) on Wal-Mart’s proposed project and circulated the EIR for public comment.  However, the City Council postponed its vote on whether to certify the EIR because it received a voter-sponsored initiative petition for a measure to approve construction and operation of the Wal-Mart supercenter.  Under California Elections Code section 9214, when a voter-sponsored initiative petition, signed by at least 15 percent of registered voters, is submitted to the legislative body of a public agency with a request that the ordinance be immediately submitted to a special vote, that body must either (a) adopt the ordinance, without alteration; (b) immediately order a special election and place the measure on the ballot for popular vote; or (c) order a report pursuant to Elections Code section 9212.

The Wal-Mart petition obtained the signatures of more than 20 percent of the City’s 2,489 registered voters, but the City Council chose not to submit the measure to an election, and instead adopted the initiative as an ordinance on its own authority.  The Wal-Mart expansion was therefore approved, even though the EIR was never certified and CEQA review was never completed.  The Tuolumne Jobs and Small Business Alliance filed a writ of mandate, alleging that the City of Sonora violated CEQA.  Upon Wal-Mart’s demurrer, the trial court denied the petition in part.

On appeal, the City and Wal-Mart argued that the City Council had a mandatory duty, under Elections Code section 9214, to either adopt the initiative or hold an election, and its actions under that duty were ministerial and not subject to CEQA.  The Appellate Court disagreed; the City Council had a mandatory duty to act on the initiative petition, but not a mandatory duty to adopt it.  The Appellate Court cited the 2004 case Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, which held that ballot measures initiated by voter petition are ministerial and exempt from CEQA, but initiatives generated by a public agency and placed on the ballot at the agency’s discretion are not.  In Tuolumne Jobs, however, a special election never happened, and the Sonora City Council chose to adopt a voter-sponsored initiative as an ordinance rather than allow the voters to decide.  Is such an act ministerial or discretionary?  The Appellate Court held that the City Council’s choice was discretionary because it decided, on its own authority, that the Wal-Mart project should move forward.

In addition, the Appellate Court held that the City Council improperly sidestepped CEQA because without an election it’s not possible to predict whether the voters would set aside the important legislative objectives of CEQA so that the project could be expedited: An “agency is not permitted to skip CEQA review when it chooses, under Elections Code §9214(a), to approve a project submitted to it via voter petition instead of holding an election under Elections Code §9214(b).”

The Appellate Court’s decision in Tuolumne Jobs & Small Business Alliance v. Superior Court is published at (2012) 210 Cal. App. 4th 1006, 148 Cal. Rptr. 3d 730, but is not citable pending Supreme Court review