California Supreme Court Decides CEQA Environmental Review Not Required For Council or Board Adoption of Voter-Sponsored Ballot Measures
By: Michael Zischke and Andrew Sabey
In an important decision governing the application of the California Environmental Quality Act (“CEQA”) to land use ballot measures, the California Supreme Court has ruled that a city council or board of supervisors does not need to comply with CEQA prior to adopting a voter-sponsored ballot measure. This decision is important for CEQA practice and for ballot measure and election law practice. Voter-sponsored ballot initiatives are used by both sides in development controversies, sometimes as a means to enact the legislative approvals for particular development projects more quickly, and sometimes as a means to adopt land preservation or growth control measures.
This case, Tuolumne Jobs and Small Business Alliance v. Superior Court, involved a voter-sponsored ballot measure to approve a particular project in the City of Sonora. Generally, when a voter-sponsored measure is circulated for signatures and submitted to a city or county with sufficient signatures, the city or county has the option either of placing the measure before the voters for approval, or approving it at the next city council or board of supervisors meeting (the city or county can also order a 30-day report on the measure and then take one of these two actions). In this case, while the traditional permitting and CEQA process was under way for the expansion of an existing Wal-Mart into a new Wal-Mart SuperCenter, project proponents began circulating an initiative ballot measure to expedite the process and enact the necessary legislative approvals for the SuperCenter via initiative. When the proponents submitted initiative petitions with more than the required 15 per cent of the voters, the city council decided to use adoption of the initiative measure to approve the project, rather than completing the CEQA process.
It has always been clear that CEQA does not apply when a measure is placed on the ballot and approved by the voters. In 2012, however, the Court of Appeal in this case created uncertainty regarding ballot measures when it ruled that the city council was required to complete CEQA review prior to adopting the pro-Wal-Mart ballot measure in lieu of submitting the matter to the voters. The California Supreme Court has just reversed that ruling.
The Court held that, under the elections code provisions governing voter-sponsored measures, the city council lacked any discretionary authority to do anything but either place the measure on the ballot or adopt it. The council had no authority to amend or condition the approval and thus no ability to “mitigate” its impacts under CEQA. Thus, the council’s action was ministerial and not subject to environmental impact review under CEQA. The court stated quite succinctly: “CEQA review is not required before direct adoption of an initiative, just as it is not required before voters adopt an initiative at an election.”
With this ruling, all of the basic rules governing land use initiatives and the CEQA process are now clear. First, if a city council or board of supervisors decides to place a government-sponsored measure on the ballot, that action is discretionary and generally requires CEQA review under the Supreme Court’s 2001 decision in Friends of Sierra Madera v. City of Sierra Madera. Second, if the voters qualify a measure for the ballot and that measure is placed before the voters for approval, that measure is not subject to CEQA. Third, under this most recent decision, if the voters qualify a measure, but the city council or board of supervisors decides to adopt it, that action is ministerial and also not subject to CEQA.
There is an important limitation on the use of ballot measures, in that the initiative process can only be used to enact legislative approvals. Many land use projects require some type of administrative or non-legislative approval, such as a subdivision map or use permit, and those administrative approvals cannot be enacted by initiative.
Tuolumne Jobs is one of eight CEQA cases that have been pending before the California Supreme Court, more than ever before. The seven remaining cases deal with a number of critical issues in the CEQA process, including the following:
whether agencies must do “reverse CEQA” and evaluate the impacts of the existing environment on the proposed project;
the standards of judicial review for CEQA’s commonly used categorical exemptions;
how CEQA mitigation requirements apply to fully protected species under the Fish and Game code;
the environmental baseline for analysis of greenhouse gas emissions;
the extent of a state agency’s obligations to mitigate local impacts; and
the standards for reviewing agency decisions that a supplemental EIR is not required.
For questions and more information, please contact the Land Use team at Cox, Castle & Nicholson LLP: