Lead Agency Could Not Bypass CEQA Review By Adopting A Voter-Sponsored Initiative As An Ordinance Instead Of Placing The Initiative On The Ballot

Explore:  CEQA

A court of appeal created a split of authority when it ruled that California Environmental Quality Act (“CEQA”) review was necessary when a city approved a project, by adopting as an ordinance, an initiative petition that contained certified signatures of 15 percent of the registered voters instead of submitting the initiative to a vote of the electorate.  (Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County, (--- Cal.Rptr.3d ----, Cal.App. 5 Dist., October 30, 2012).


Wal-Mart Stores, Inc. wanted to expand an existing 130,000 square foot store in Sonora into a Wal-Mart Supercenter (“Walmart Supercenter Project” or “Project”).  The Supercenter would stay open 24 hours a day and seven days a week, and would sell groceries.  Wal-Mart submitted an application to the City of Sonora (“City”) for the approvals needed for the expansion.  City prepared an environmental impact report (“EIR”), circulated it for public comment, held a public hearing on the application, and voted to recommend approval.  Before the city council voted on whether it would certify the EIR and approve the Project, James Grinnell served City with a notice of intent to circulate an initiative petition.  City postponed its vote on the EIR while it considered the initiative.  Out of the 651 signatures gathered and submitted to the registrar of voters, 541 were found to be valid.  The 541 signatures represented more than 15 percent of City’s 2,489 registered voters.

The city council considered its options under Elections Code section 9214 which provides that if an initiative petition is signed by not less than 15 percent of the voters of a city with more than 1,000 registered voters, and the petition contains a request that the ordinance be submitted immediately to a vote of the people at a special election, the legislative body must take one of the following actions:  (a) adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition was presented, or within 10 days after it is presented, (b) immediately order a special election at which the ordinance must be submitted without alteration to voters, or (c) order a report at the regular meeting at which the certification of the petition is presented.  The city council voted to adopt the initiative as Ordinance No. 796 instead of holding a special election on the initiative.  This resulted in City’s approval of the Wal-Mart Supercenter Project even though no CEQA review was completed.

Tuolumne Jobs & Small Business Alliance (“Alliance”) filed a petition for a writ of mandate alleging, among other things, that City’s action in adopting Ordinance No. 796 “violated CEQA because, unlike voter approval of an initiative via a special election pursuant to Elections Code section 9214, subdivision (b),  [C]ity approval of the same initiative under subdivision (a) requires environmental review.”  Wal-Mart filed a demurrer asserting that Alliance failed to state a cause of action on its claim that City’s action in adopting the Ordinance instead of holding a special election violated CEQA.  The trial court sustained Wal-Mart’s demurrer and dismissed Alliance’s claim that City’s actions violated CEQA.


The court of appeal held that a lead agency “cannot skip CEQA review when it chooses, under Elections Code section 9214, subdivision (a), to approve a project submitted to it via voter petition instead of holding an election under Elections Code section 9214, subdivision (b).”  The court of appeal concluded that although a project approved pursuant to a ballot initiative that was placed on the ballot by voters and subsequently approved in an election is exempt from environmental review under CEQA, environmental review cannot be avoided when a lead agency chooses to forgo the election and adopt the initiative as an ordinance. 

Wal-Mart and the City asserted that CEQA compliance could be avoided after supporters of the project gathered the signatures of at least 15 percent of the registered voters on an initiative petition and the lead agency adopted the initiative directly as an ordinance.  The court disagreed and concluded that “[e]nvironmental review can be avoided when the voters choose to bypass it, not when the lead agency chooses to bypass the voters.”

The court analogized to Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 where the Supreme Court held that an initiative placed on the ballot by the city council without receiving a petition from voters pursuant to Elections Code section 9222 was not exempt from CEQA review, while a ballot measure initiated by voter petition was. In Friends of Sierra Madre,  the court considered two factors: 1) imposing CEQA requirements on voter-generated initiatives might be an impermissible burden on the electors’ constitutional power to legislate by initiative and 2) CEQA does not apply to ministerial projects.

With respect to the first factor, when a city council attempts to use Elections Code section 9214, subdivision (a) to approve a project by bypassing the voters and adopting the initiative, the city council takes the matter out of the electorate’s hands.  Under such circumstances, the court held “the voter’s constitutional power of initiative cannot support a CEQA exemption for the project.” 

With respect to the second factor, CEQA does not apply to ministerial projects that are proposed or approved by public agencies.  Wal-Mart argued that the city council’s decision to adopt Ordinance No. 796 itself without a vote of the electorate was a ministerial action the election would not take place and that the initiative would become an ordinance, the City merely conformed to a ministerial duty.  The court rejected this argument finding that the city council’s decision to adopt the initiative instead of submitting it to the voters was discretionary. 

The court declined to follow the holding of Native American Sacred Site & Environmental Protection  Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, which held that a city was not required to comply with CEQA before it adopted an initiative as an ordinance instead of submitting the initiative to the voters in a special election.  The court here instead held that CEQA compliance is required before the City could approve the Wal-Mart Supercenter project without an election. 

The court noted that due to the time limits in section 9214, “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.”  The court opined that an election is necessary to express the desire of the voters to proceed without CEQA review.  Although the results of an election will represent the will of the people, a petition signed by only 15 percent of the voters does not represent the will of the people.

The court held that a lead agency may not skip CEQA review by choosing to approve a project submitted by voter petition instead of holding an election as mandated by section 9214, subdivision (b).


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey or Leslie Z. Walker | 916.321.4500

Jon E. Goetz | 805.786.4302


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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