This case addresses the question of whether CEQA review can be avoided if project approval is accomplished via an initiative petition in combination with City Council approval, in the absence of an actual election.
According the court: “It is settled that when a development project is approved by means of a ballot initiative placed on the ballot by voters and adopted by them in an election, the project is exempt from environmental review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). (See CEQA Guidelines, § 15378 (b) fn. 1 .) In this case, real parties in interest Wal-Mart Stores, Inc., and the City of Sonora contend that CEQA compliance also can be avoided when a developer’s supporters gather signatures of 15 percent of the registered voters on an initiative petition to approve the development, and the lead agency chooses to forgo the election and adopt the initiative directly as an ordinance, pursuant to Elections Code section 9214.” In this case, the court disagreed and held that:
- “Environmental review can be avoided when the voters choose to bypass it, not when the lead agency chooses to bypass the voters.”
- “The 15-percent minority’s power is merely to demand an opportunity for the exercise of sovereignty by the voters at an election. To be sure, this is a vitally important power without which the voters’ will often would not ultimately be expressed. It does not mean, however, that any constitutional principle allows 15 percent of a city’s voters plus a majority of the city council to defeat state law” (i.e. CEQA requirements)
This case involves the approval of the expansion of an existing 130,000-square-foot Wal-Mart store in Sonora (the city). Wal-Mart sought to expand the store and make it a Wal-Mart Supercenter, which would be larger, would sell groceries, and would be open 24 hours a day, seven days a week. The City prepared an EIR for the project, however, before the city council voted on whether to certify the EIR and approve the project, the city was served with a notice of intent to circulate an initiative petition for an election to approve the project. The city referred to this initiative as the “Walmart Initiative.” It postponed its vote on the EIR and Wal-Mart’s application while it considered the initiative. The City’s registrar found that 541 out of 2,489 registered voters, or more than valid 15 percent of the city’s registered voters signed the petition to approve the project. After a public hearing the city council voted to adopt the initiative as Ordinance No. 796 and to forgo the special election pursuant to Elections Code Section 9212 and 9214. In this manner, the Wal-Mart expansion was approved by the city even though the EIR was never certified and CEQA review was never completed.
This case addresses the following issues, whether:
- the city’s action violated CEQA because, unlike voter approval of an initiative via a special election pursuant to Elections Code section 9214, subdivision (b), city approval of the same initiative under subdivision (a) requires environmental review;
- the initiative is invalid because it conflicts with the Sonora General Plan;
- the initiative includes provisions that would improperly limit the city’s {Slip Opn. Page 5} legislative power in the future; and
- the initiative is administrative in character, not legislative, and is therefore not a proper subject for the initiative process.
Here the court held that the “developers’ strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA’s important statutory objectives and to subvert the constitutional goals of the initiative process.”
In this case the court disagreed with the holding in Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961 (Native American Sacred Site).
The case includes a discussion of the Supreme Court’s decision in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 (Friends of Sierra Madre) which lead to the current language of CEQA Guidelines Section 15378. As detailed in this case, Friends of Sierra Madre held that: (1) “placing a voter-sponsored measure on the ballot is a ministerial act.” (Friends of Sierra Madre, supra, 25 Cal.4th at p. 189.) 2. “imposing CEQA requirements on such [voter-generated] initiatives might well be an impermissible burden on the electors’ constitutional power to legislate by initiative. (Cal. Const., art. II, §§ 8, 11.)” (Ibid.); and 3. that “these authorities do not justify applying Guidelines section 15378, subdivision (b)(3), to city-council-generated initiatives, however.’
In Friends of Sierra Madre the court concluded that there is “a clear distinction between voter-sponsored and city-council-generated initiatives.” (Friends of Sierra Madre, supra, 25 Cal.4th at pp. 189, 190-191.) ‘While ballot measures initiated by voter petition are exempt from CEQA, those generated and placed on the ballot by a public agency are not. (Friends of Sierra Madre, supra, at p. 191.)
After Friends of Sierra Madre was decided, CEQA Guidelines section 15378, subdivision (b), was amended to conform with the court’s holding. It now states that the term “project” excludes “[t]he submittal of proposals to a vote of the people of the state or of a particular community that does not involve a public agency sponsored initiative.”