How often do we hear project proponents ask whether there is a way to shortcut the CEQA timeline or head off litigation?  It's not an unusual question given that some proposals draw fire no matter how much energy goes into the environmental disclosure and mitigation process.  It's certainly not surprising that Wal-Mart, a company invariably faced with lawsuits no matter how thorough the CEQA review is on its projects, tried to find a different way.

In Tuolumne Jobs & Small Business Alliance v. Superior Court, the court of appeal squelched what had looked like a potential path around the CEQA quagmire.  The plan was fairly simple:  support a citizen-sponsored initiative measure to provide the legislative approvals needed for a project; gather a sufficient number of signatures from the electorate; present the initiative to the city council; and then persuade the city council to enact the measure rather than place it on the ballot.  A prior court decision had held that the council would not need to comply with CEQA – which would mean there could be no CEQA litigation.

The Tuolumne court emphatically rejected the plan, declaring:  "Environmental review can be avoided when the voters choose to bypass it, not when the lead agency chooses to bypass the voters."

Under the Elections Code, a city council in a general law city has two choices when presented with a qualified initiative petition:  either enact the legislation without alteration or place it on the ballot.  While a city may also request a report for more information, the law does not allow enough time, in most cases, for a city to comply with CEQA before taking action.

The California Supreme Court has applied these Election Code provisions to land use initiatives on several occasions.  In DeVita v. County of Napa, 9 Cal. 4th 763 (1995), the court held that voters can enact land use approvals such as general plan amendments, by initiative.  Several years later, in Friends of Sierra Madre v. City of Sierra Madre, 25 Cal. 4th 165 (2001),the court ruled that while a city council's ministerial action placing a citizen-sponsored measure on the ballot is exempt from CEQA, a city council's decision to place its own initiative on the ballot is not.  In that case, according to the court, the council is exercising its discretion – and can and must comply with CEQA before taking such an action.

Wal-Mart contended that because its initiative was citizen-sponsored, it fell within the exemption recognized in Friends of Sierra Madre.  The Fifth District Court of Appeal disagreed, ruling that a city council's decision to enact the legislation, rather than place it on the ballot, is a discretionary act.  No fixed criteria dictate whether the city must adopt the legislation or not.  Rather, doing so is a policy choice based on the council's judgment about the pros and cons of the measure and the costs of an election.  By contrast, if the city council chose not to enact the proposal, it would have no choice but to place the initiative measure on the ballot and that action is ministerial.

The court recognized that its decision directly conflicts with a 2004 decision by the Fourth District Court of Appeal, Native American Sacred Site & Environmental Protection Ass'n v. City of San Juan Capistrano, 120 Cal. App. 4th 961 (2004).  There, the court held that a decision by the city council to enact a citizen-sponsored initiative was a ministerial act because the Elections Code mandates that the city must either enact the measure without alteration or place it on the ballot.
Faced with this split of authority, it is likely the California Supreme Court will weigh in if a petition for review is filed.

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