The California Supreme Court has just issued an opinion which may encourage the use of initiatives. At issue in the case was an initiative to adopt a specific plan to streamline approval for construction and operation of a WalMart Supercenter. It has long been clear that CEQA does not apply to land use initiatives proposed by voters and adopted at an election. There has, however, been an unsettled question as to whether a city could adopt an initiative before the election without CEQA review. The California Supreme Court, in the case of Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County, has now ruled that that a city may adopt a certified initiative without CEQA review.
The California Election Code sets out the procedures for local initiatives. When a city council receives an initiative petition signed by at least 15 percent of the city’s registered voters, it must: (1) adopt the initiative, without alteration, within 10 days after the petition is presented; (2) immediately submit the initiative to a vote at a special election; or (3) order a report on the effects of the initiative on land use, infrastructure, or any other matter (usually fiscal impact). If a report is ordered, it must be prepared and presented within 30 days after the petition was certified. Within 10 days after receiving the report, the city council must either adopt the initiative or order an election. This procedure leaves insufficient time to comply with CEQA before the decision must be made.
This case is expected to generate controversy because of concerns that developers working with friendly city councils may use the technique to avoid CEQA review. The Supreme Court acknowledged that:
"developers could potentially use the initiative process to evade CEQA review, and that direct adoption by a friendly city council could be pursued as a way to avoid even the need for an election. Of course, the initiative power may also be used to thwart development. (citation omitted) However, these concerns 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."
Many CEQA lawsuits are brought to delay or kill a project for reasons other than concern for the environment. They are brought by competitors, unions, groups with social or economic motives, and NIMBYs opposed to any development. There will be times when it is more efficient to seek an initiative, rather than suffer the delays inherent in CEQA litigation. Much of the criticism can be muted by preparing an informal environmental analysis of relevant environmental issues to accompany the initiative.