California Supreme Court Holds CEQA Inapplicable To City’s Adoption Of Qualified Voter Initiative Approving Wal-Mart “Supercenter” Project

by Miller Starr Regalia
Contact

In a concise 15-page opinion filed August 7, 2014, the California Supreme Court reversed the Fifth District Court of Appeal’s judgment which had held that a city may not adopt a voter-sponsored initiative with potential environmental impacts unless it conducts a CEQA analysis. Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County (Wal-Mart Stores, Inc., et al., Real Parties In Interest (2014) ___ Cal.4th ___, Case No. S207173. (For relevant case background, my initial post analyzing, criticizing, and predicting that the Supreme Court would grant review of the Fifth District’s decision can be accessed at the following link: “Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed by Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent And Creates Split In Authority,” by Arthur F. Coon, posted November 8, 2012.)

The case’s facts are simple and undisputed.  In 2007, Wal-Mart sought to expand an existing store in the City of Sonora to a “Supercenter” that would sell groceries and be open 24 hours daily. In 2009, the City’s planning commission unanimously recommended certification of a draft EIR for the project. Before the City Council’s vote, it was served with a notice of intent to circulate a citizen initiative petition – the “Wal-Mart Initiative” – to adopt a specific plan for the project that would streamline approval for its construction and operation. The petition was ultimately signed by more than 20% of the City’s registered voters. The council ordered a report under Elections Code § 9212 to examine the initiative’s consistency with the previous planning commission approvals for the project, then at its next meeting considered the report and adopted the initiative ordinance. Plaintiff Tuolumne Jobs & Small Business Alliance sued, claiming the council’s action violated CEQA because it did not conduct a full CEQA review, and the trial court sustained the initiative proponent’s demurrer. The Fifth District reversed on appeal, however, holding the council was required to conduct a full CEQA review if it adopted the initiative measure rather than placing it on the ballot for a vote of the people.

In granting review and reversing, the Supreme Court made the following key points:

  • Its earlier decision in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, which held local agencies must comply with CEQA before placing a land use initiative on the ballot, was inapposite because it dealt with city council-generated initiatives, which are clearly distinct from voter-sponsored initiatives. While voters may justifiably assume a city council has carefully studied the effects of any initiative it places on the ballot, they have no reason to believe the same is true of voter-sponsored initiatives and can therefore be expected to more carefully consider the potential environmental effects of the latter category before deciding whether to support such initiatives.
  • The Elections Code provides the exclusive procedures for voter initiatives, and these implement the 1911 California Constitutional amendment reserving to the people the powers of initiative and referendum by creating an indirect process for city and county initiatives. Thus, “[t]hese can only be submitted to voters if they have been presented to, but not enacted by, the local legislative body.” (Citing Thompson v. Board of Supervisors (1986) 180 Cal.App.3d 555, 561; see Elections Code, §§ 9214, 9212 [establishing procedure whereby when local body receives initiative petition signed by at least 15% of its registered voters, it must (a) adopt initiative without alteration within 10 days, (b) immediately submit to vote at special election, or (c) order report examining initiative’s effects on land use, infrastructure, and other matters to be prepared and presented within 30 days, and then adopt or order election within 10 days of receipt of report].)
  • Consistent with the well-established rule that CEQA compliance is not required before a legislative body submits an initiative to voters under this scheme, CEQA review is likewise not required when it directly adopts a citizen petition. To require CEQA review would be “contrary to the statutory language and legislative history pertaining to voter initiatives” and “policy considerations do not require a different result[.]”
  • The plain language of Election Code § 9214 does not mention CEQA, and requiring CEQA review would be inconsistent with and nullify its provisions allowing direct adoption and providing for preparation and consideration of an abbreviated report. “Considering the time necessary for agencies to review the potential environmental impacts of a project and allow public review and comment, it would be impossible for a city to complete CEQA review within 10 days before adopting a voter initiative. (§ 9214(a)).” Moreover, since § 9214’s deadlines are mandatory, and “under no circumstances can a city delay action on a voter initiative beyond 40 days” under those deadlines, “if prior CEQA review is required, a city could never adopt a voter initiative under section 9214(a) if that initiative had any potential impact on the environment. Direct adoption would be severely curtailed and, for many initiatives, no longer an option, because it would be impossible for cities to comply with both CEQA and the section 9214 deadlines.” Moreover, “[i]f full CEQA review were required before [direct]… adopt[ion], the abbreviated report provided for by sections 9212 and 9214(c) would be superfluous.”
  • The legislature is presumably aware of all laws in existence when it passes or amends a statute, and when it enacted CEQA in 1970, the statutory procedures for enacting voter initiatives had been “firmly in place… for nearly 60 years.” Had the legislature meant to change them to require CEQA review, it could easily have said so and did not. Moreover, “[t]here is a strong presumption against repeal by implication.”
  • While not explicitly stating that the limited and strictly-circumstantial procedural options provided by the Elections Code prescribe a “ministerial” decision-making process that would thus be exempt from CEQA in any event, the Supreme Court essentially said as much in the following passage of its opinion: “Finally, even if time constraints permitted CEQA review, cities would be powerless to reject the proposed project or to require alterations in the project that would lessen its environmental impacts, no matter what the review showed.”
  • The court buttressed its foregoing analysis with an exploration of legislative history which it concluded “confirms that ordinances enacted by initiative, either directly or by election, are not subject to CEQA review.”
  • Finally, the court concluded that direct adoption without CEQA review does not offend public policy. “Direct adoption has… been available to local governments from the outset of legislation by initiative” and the “voters who amended the Constitution intended to empower their government to enact a qualified initiative immediately, without the need for an election and its attendant delay and cost.” Concerns about interested parties’ use of the process – whether to “evade CEQA review” or, conversely, “to thwart development” – “are appropriately addressed to the legislature. The process itself is neutral.  The possibility that interested parties may attempt to use initiatives to advance their own aims is part of the democratic process.”
  • In closing, the Supreme Court also noted that “voters have statutory remedies [i.e., the referendum process] if direct adoption of an initiative results in the enactment of an undesirable law…. The legislature has outlined clear procedures for voters to overturn an ordinance adopted against the majority’s will. Whichever path a city chooses in dealing with a voter initiative, voters have the final say.”

The Supreme Court’s decision authoritatively reaffirms what appeared to be settled CEQA and Elections Code law in this context prior to the Fifth District’s aberrant decision. In sum: “Power to the people!”

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!