By William W. Abbott
First, a micro history lesson. Hiram Johnson served as California’s governor from 1911 to 1917. For purposes of this blog, one of Hiram’s important contributions was his support for the constitutional amendment which added the right of initiative and referendum to the California Constitution. At the start of the 20th century, California joined the national populist movement embracing direct citizen involvement, thereby revolutionizing state politics. In California, the push for direct citizen involvement in the legislative process was designed in part to break the political control in Sacramento which was held by Southern Pacific Railroad, and by all counts the effort accomplished that goal. The initiative power was only one of several significant reforms championed by Johnson, but more on that later. For the curious, check out Hiram’s profile by the State Librarian: http://governors.library.ca.gov/23-hjohnson.html. For more on the history and significance of initiatives, check out the Initiative and Referendum Institute.
The significance of the right of initiative and referendum was not lost on the California Supreme Court in the decision of Tuolumne Jobs & Small Business Alliance v The Superior Court S207173. The facts involve Wal-Mart’s efforts to expand an existing store. The City of Sonora had processed an EIR, and the Planning Commission recommended approval. Following the Commission recommendation but before City Council action, supporters submitted an initiative which proposed to adopt a specific plan and streamline project approval. Proponents circulated the initiative measure, and 20% of the City’s registered voters signed the measure. The City Council postponed its vote on the permits, and pursuant to Elections Code section 9212, authorized preparation of the report which examined among other issues, consistency of the initiative measure with the approvals issued by the planning commission. After reviewing the study, the City Council chose to adopt the measure as submitted by the voters (the Elections Code directs that a city council is to schedule the measure for election or enact it as submitted. The council is not authorized to modify the measure.) A local coalition filed suit challenging the Council’s decision to enact the measure without CEQA compliance, and the trial court effectively ruled in favor of the City. On the a basis of a writ petition to the court of appeal, the court of appeal reversed on the CEQA issue determining that the City had to complete CEQA review. In light of a conflict with another published decision (Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961), the California Supreme Court granted review.
The Court noted that the Elections Code makes no mention of CEQA, allows for an expedited environmental and general plan consistency evaluation, and is structured around very short time mandated time frames. For example, once the initiative measure is ready for city council action, the council can delay the measure for up to 30 days for purposes of considering a study regarding the measure’s effects. There is no room in the schedule to integrate CEQA’s requirements and still comply with the limitations of the Elections Code. Given the timing conflicts, the court viewed CEQA compliance as effectively nullifying one of a city council’s options of directly adopting a citizen measure. (Elections Code section 9214(a). The court also observed that under the Elections Code, the city council is not authorized to modify the measure. This limitation would be at odds with one of CEQA’s purposes which is to integrate feasible mitigation into a project.
In the end analysis, the court held that CEQA does not apply to measures submitted to the council who in turn, puts the measure on the ballot for passage by the voters or when directly enacted by the city council. Slightly over 100 years later, I think that Hiram Johnson would concur in the protection of citizen legislation.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.