Thursday, November 1, 2012
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Wal-Mart Project Requires Environmental Review—Court
Initiative Petition Does Not Circumvent CEQA Where Public Gets No Vote, Justices Rule
By KENNETH OFGANG, Staff Writer
A public agency may not circumvent environmental review requirements by enacting a proposed ballot measure without a public vote, the Fifth District Court of Appeal ruled yesterday.
The justices overturned a Tuolumne Superior Court judge’s denial of a writ of mandate sought by critics of Wal-Mart, which is seeking to create a Superstore in Sonora, the Tuolumne County seat. Wal-Mart and the city claimed, and the trial judge agreed, that because 15 percent of the city’s registered voters petitioned to place an initiative on the ballot approving the project, and the city council chose to enact the measure without a public vote, the project was exempt from the California Environmental Quality Act.
The petition drive began shortly after the city’s planning commission voted to approve the project, which would expand an existing 130,000-square foot store into a huge complex that would sell groceries and be open 24 hours a day, seven days a week. Before the city council could give final approval and certify an environmental impact report required by CEQA, a citizen began a petition drive to bypass the council and place a measure on the ballot to approve the project directly.
Successful Drive
The city clerk certified that the petition drive was successful, as more than 15 percent of the city’s nearly 2,500 registered voters signed. The council then held a public hearing before voting to invoke Elections Code Sec. 9214, which allows a city council to enact a proposed initiative as an ordinance, instead of submitting it to voters.
A citizens group challenged the ordinance in court, arguing—among other things—that while a voter-approved measure is exempt from CEQA, a measure enacted without a public vote under Sec. 9214 is not. Superior Court Judge James A. Boscoe disagreed, but the Court of Appeal said the petitioner was correct.
“Environmental review can be avoided when the voters choose to bypass it, not when the lead agency chooses to bypass the voters,” Justice Rebecca Wiseman wrote for the court.
Split of Authority
Wiseman acknowledged a contrary decision, Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, which held that because the decision to enact an ordinance rather than call an election is ministerial, Public Resources Code Sec. 21080(b)(1) exempts a project from CEQA when Sec. 9214 applies. Sec. 21080(b)(1) provides that CEQA does not apply to “[m]inisterial projects proposed to be carried out or approved by public agencies.”
The court’s reasoning was incorrect, Wiseman said, explaining:
“Although the duty to adopt the initiative or hold a special election certainly is mandatory under Elections Code section 9214—the statute says the city council “shall” do one or the other—the choice between the two is entirely discretionary. This choice is not insignificant, for it means the difference between giving the voters the opportunity to exercise their franchise and withholding that opportunity; and the array of reasons that can enter into the city council’s exercise of discretion is large. We do not agree that the city’s action in approving the project via adoption of the initiative is ministerial because the city was required to do either that or something else. After all, how can the making of a policy choice be ministerial, even when the choice must be made?”
The cases cited in Native American Sacred Site are distinguishable, Wiseman said, because they involved legislative bodies that failed to act on petitions, not, as here, a situation where the council acted by taking the decision on the project from the voters.
The case, which drew amicus briefs from the Howard Jarvis Taxpayers Association and League of California Cities supporting the city and Wal-Mart, is Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.), 12 S.O.S. 5598.
Copyright 2012, Metropolitan News Company