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,
The essential facts are undisputed. There is a 130,000-square-foot Wal-Mart store in Sonora (the city). Wal-Mart wants to expand it 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.
Wal-Mart submitted an application to the city for the approvals necessary for the expansion. The city prepared an environmental impact report (EIR) on
On June 28, 2010, before the city council voted on whether to certify the EIR and approve the project, real party in interest James Grinnell served the city with a notice of intent to circulate an initiative petition. 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.
Signatures were gathered and submitted to the registrar of voters. Out of 651 signatures submitted, the registrar found 541 valid and concluded that this was more than 15 percent of the city's 2,489 registered voters.
The city council held a public hearing on the initiative on September 20, 2010. The city administrator and a representative of Wal-Mart both explained that the purpose of the initiative was to approve Wal-Mart's construction and operation of the supercenter, and that it was a procedural alternative to city approval of Wal-Mart's original application, having the same effect.
The city council considered the "Walmart Initiative" at its meeting on October 18, 2010. A Wal-Mart representative again explained that Wal-Mart had put "`the planning commission's recommendation [to approve the project] into the form of an initiative ....'" The city considered the courses of action open to it under Elections Code section 9214, which provides:
After a public hearing at the October 18, 2010, meeting, the city council voted to adopt the initiative as ordinance No. 796 and to forgo the special election. 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.
TJSBA filed a petition for a writ of mandate in the superior court, alleging four causes of action: (1) 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 section 9214, subdivision (a) requires environmental review; (2) the initiative is invalid because it conflicts with the Sonora general plan; (3) the initiative includes provisions that would improperly limit the city's legislative power in the future; and (4) the initiative is administrative in character, not legislative, and is therefore not a proper subject for the initiative process.
Wal-Mart filed a demurrer, arguing that the petition failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The city and Grinnell joined in the demurrer. Grinnell also filed a separate demurrer asserting that he was not a proper real party in interest. The court sustained Wal-Mart's demurrer with respect to the first, third, and fourth causes of action and overruled it with respect to the second cause of action. It also overruled Grinnell's separate demurrer. The court denied leave to amend.
TJSBA filed a petition for a writ of mandate in this court, requesting that we order the superior court to vacate its order sustaining the demurrer as to the three causes of action. The petition also requested that we stay the proceedings in the superior court. We ordered real parties in interest to file an informal response and then issued an order to show cause why relief should not be granted. We also stayed the trial, pending determination of the petition. Wal-Mart and the city filed returns on March 1, 2012. TJSBA filed a traverse on April 3, 2012.
Writ relief in this case will avoid a situation in which the superior court enters judgment for Wal-Mart and the city based on an error of law, an error that will have to be reversed on appeal after much time has elapsed and money has been spent needlessly. Further, the legal issue is important and calls for speedy resolution. 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 arguing against writ relief, Wal-Mart and the city point out that the superior court had set the trial for March and had scheduled a mere one-hour hearing. They say this shows that going to trial would have involved minimal expense and any error could easily have been corrected on appeal. Even a one-hour trial has costs for the parties, however, costs that are needless where the trial court has erred in sustaining a demurrer on a meritorious cause of action and a reversal on appeal will necessitate another trial.
There are other consequences besides the wasted one-hour trial. An appeal can take well over a year, and the loss of time is itself an unnecessary cost under these circumstances. In the meantime, Wal-Mart might decide, on the strength of a win in the superior court, to proceed with building the project, possibly leading to a later order requiring the project to be removed at great cost. (See Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888-889 [92 Cal.Rptr.2d 268].)
Wal-Mart and the city also point out that we are not dealing with an issue of first impression in this case, since the Court of Appeal addressed the same issue in Native American Sacred Site, supra, 120 Cal.App.4th 961. After careful consideration, we have concluded that we disagree with Native American Sacred Site, which is the only authority squarely on point.
If this were an appeal, we would be reviewing a judgment entered after the demurrer was sustained. Here, of course, there has been no judgment, but we apply the same standard of review to the court's order sustaining the demurrer. This standard is well established: "In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. `The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citations.]" (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603 [6 Cal.Rptr.3d 574].)
In this case, the only question on the first cause of action is whether, as a matter of law, CEQA review is unnecessary when a city approves a project by adopting as an ordinance the text of an initiative presented to it under Elections Code section 9214 with certified signatures of 15 percent of the city's registered voters, thereby avoiding the need for an election on the initiative. There is no dispute but that if this is a valid way of approving a project without CEQA review, the demurrer was sustained correctly on this cause of action, and that if it is not, then the demurrer must be overruled. The order sustaining the demurrer on the third and fourth causes of action similarly involves only questions of law. It is undisputed that if the law is as claimed by TJSBA, then the facts TJSBA pleaded are sufficient, and that if the law is as claimed by real parties in interest, then the pleading is insufficient and cannot be cured by amendment.
The related problem of CEQA's applicability when a city does conduct an election on an initiative has been settled by our Supreme Court in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 [105 Cal.Rptr.2d 214, 19 P.3d 567] (Friends of Sierra Madre). A controversy had arisen in Sierra Madre over whether certain properties should be removed from the register of historic landmarks. The city council was advised that an EIR would need to be prepared assessing the impact of the delisting. Property owners were reluctant to pay the cost of an EIR. The city decided to put the question to a vote of the electorate by placing an initiative on the ballot pursuant to Elections Code section 9222. This section authorizes a city council to place its own initiative on a ballot, that is, an initiative it created on its own, without receiving a petition from voters. The city took the position that if the decision were made by the voters, rather than the city council, the properties could be delisted without CEQA compliance. (Friends
The Supreme Court began its analysis by summarizing the requirements of CEQA and observing that these requirements are triggered by all projects that are not exempted. (Friends of Sierra Madre, supra, 25 Cal.4th at p. 184.) It stated that the city's action in placing the initiative on the ballot without prior environmental review "was improper unless Guidelines section 15378, subdivision (b)(3) exempted the ballot measure from CEQA compliance." (Id. at p. 187.) Assuming that California's Natural Resources Agency, which promulgates the Guidelines, intends them to be valid, the court searched for some law that "mandates or permits exclusion of ballot measures initiated by a public agency from CEQA ...." (Friends of Sierra Madre, supra, at p. 190.)
For these reasons, 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.) The Guidelines cannot be understood to authorize a CEQA exemption for "ballot measures placed before the electorate by a public agency in the exercise of the agency's discretion." (Friends of Sierra Madre, supra, at p. 190.)
After Friends of Sierra Madre was decided, Guidelines section 15378, subdivision (b)(3), was amended to conform with the court's holding. It now
Applying Friends of Sierra Madre in a more detailed way, we employ the method used by the Supreme Court: Starting from the proposition that CEQA applies to projects approved by public agencies unless some authority establishes an exemption or exception, we consider the possible grounds for finding an exemption or exception here.
The exemption delineated in Guidelines section 15378, subdivision (b)(3), is inapplicable, for it applies only to "[t]he submittal of proposals to a vote of
As we have mentioned, the Supreme Court commented on the people's constitutional power of initiative in DeVita, stating that procedural constraints imposed by statute on a local legislative body "neither apply to the electorate nor are taken as evidence that the initiative or referendum is barred" when the voters vote to do something that would have been subject to those constraints had the legislative body done it instead. (DeVita, supra, 9 Cal.4th at p. 786.) Then the court explained that this rule "is a corollary to the basic presumption in favor of the electorate's power of initiative and referendum." (Ibid.) Similarly, the court stated that article II, section 11, of the California Constitution guarantees local voters' right to pass an initiative unless the Legislature clearly intended "to preempt that power pursuant to a statewide purpose." (DeVita, supra, at p. 795.)
It might be argued that because 541 of the city's 2,489 voters signed petitions in support of the initiative, CEQA's requirements must be held inapplicable in order to preserve the "precious rights of our democratic process" for those 541 voters. This cannot be correct. Elections Code section 9214 allows as little as 15 percent of a city's voters to place a ballot measure before all the voters, but neither that section nor the constitutional provisions it implements authorizes a small minority of voters in a local jurisdiction,
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. Far from carrying out the objectives of the 1911 constitutional amendment, that result would undermine those objectives: The amendment aims to allow a majority of voters to step in when they find that their elected representatives have failed them. It was not designed to allow a small minority of voters representing only themselves to obtain, via petition, a policymaking power exceeding that of the majority's elected representatives. To hold otherwise would authorize rule by a few — the antithesis of democracy.
Public Resources Code section 21080, subdivision (b)(1), provides that CEQA does not apply to "[m]inisterial projects proposed to be carried out or approved by public agencies." Wal-Mart argues that when a city council faces the choice under Elections Code section 9214 between holding an election and adopting an initiative directly itself, and it takes a vote and decides that the election will not take place and the initiative will become an ordinance upon the council's own authority, the city has merely conformed to a ministerial duty. We disagree. The council makes a choice to authorize the project — a choice based on its policy preferences regarding the desirability of an election and the nature of the project — and this is a discretionary action.
Guidelines section 15369 defines "ministerial": "`Ministerial' describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special
Wal-Mart argues that the city council's action was ministerial because Elections Code section 9214, subdivision (a), says that if the council adopts the initiative, it must do so "without alteration," and this means there was no scope for the operation of any discretion on the city's part. This argument misses the mark for the reasons we have already indicated. The question is whether the city acted in accordance with a ministerial duty. No ministerial duty dictated the city's decision to adopt the initiative instead of submitting it to the voters. This decision was discretionary. The definition in Guidelines section 15369 specifies that an action is ministerial if public officials cannot use discretion or judgment in deciding "whether or how the project should be carried out" (italics added). Here the city council did decide that the project should be carried out, and in doing so used its discretion and political judgment in concluding that the decision about whether it should be carried out should not be left to the electorate.
Wal-Mart relies on Native American Sacred Site, supra, 120 Cal.App.4th 961, for both the proposition that the city council's choice was ministerial and the notion that a CEQA exemption is necessary to protect the constitutional rights of the petition signers. In that case, a private high school wanted to develop a parcel for recreational facilities. It collected signatures on a petition in support of an initiative to rezone the property and amend the general plan. After the registrar of voters certified that the petition had valid signatures of more than 15 percent of the city's registered voters, the city council acted pursuant to Elections Code section 9214 to adopt the initiative as an ordinance instead of submitting the initiative to the voters in a special election. The plaintiffs filed a petition for a writ of mandate in the superior court, arguing that the city was required to complete CEQA review before adopting the initiative. The trial court sustained a demurrer. (Native American Sacred Site, supra, at pp. 963-965.)
On appeal, the plaintiffs again argued that the city was required to comply with CEQA before adopting the initiative. (Native American Sacred Site, supra, 120 Cal.App.4th at p. 965.) The Court of Appeal disagreed. It stated that the approval was exempt from CEQA under Public Resources Code section 21080, subdivision (b)(1), because a "city's duty to adopt a qualified voter-sponsored initiative, or place it on the ballot, is ministerial and mandatory." (Native American Sacred Site, supra, at p. 966.)
All the cases the court cited in support of the proposition that the project approval was ministerial are distinguishable. In each of them, the legislative body failed to take any appropriate action in response to a certified initiative petition presented on behalf of the voters; it neither called an election nor adopted the initiative. The court in each instance ordered the legislative body
One of the cases Native American Sacred Site relied on appears to undermine the court's analysis. In Citizens for Responsible Behavior, supra, 1 Cal.App.4th at page 1021, the court stated that "once an initiative measure has qualified for the ballot, the responsible entity or official has a mandatory duty to place it on the ballot." At this point it appended a footnote: "An obvious statutory exception permits the legislative body to avoid this necessity by adopting the measure itself ...." (Id. at fn. 4.) In other words, the city's power to adopt the measure itself was not a mandatory duty but an exception to the mandatory duty to hold an election. Taking advantage of the exception is discretionary, not ministerial.
The court in Native American Sacred Site mentioned the plaintiffs' argument that these cases were distinguishable because they involved requests for an order compelling an election to be held, not challenges to a legislative body's decision to adopt an initiative; it concluded that this distinction was "meaningless" because "[i]n both cases, a city's duty is still mandatory and ministerial ...." (Native American Sacred Site, supra, 120 Cal.App.4th at p. 967.) This conclusion is mistaken for the reasons we have given. Under
Native American Sacred Site also held the voters' right of initiative would be thwarted if no CEQA exemption were found where the city council chooses to adopt the initiative instead of holding an election. The court wrote, "[W]e are not persuaded by plaintiffs' related claim that their `appeal has nothing to do with the rights of the voters ....' It has everything to do with those rights. More than 15 percent of the city's voters signed the initiative petition. They, on behalf of themselves and of the entire city population, are entitled to have their decision implemented under [Elections Code] section 9214, which manifests the power of initiative reserved to the people under the Constitution." (Native American Sacred Site, supra, 120 Cal.App.4th at p. 968.)
Another argument that might be made by a defender of Wal-Mart's view is as follows: As we have mentioned, Friends of Sierra Madre held that "placing a voter-sponsored measure on the ballot is a ministerial act." (Friends of Sierra Madre, supra, 25 Cal.4th at p. 189.) If a city council engages in a ministerial act when it decides under Elections Code section 9214, subdivision (b), to place a voter-sponsored measure on the ballot, then it must also engage in a ministerial act when it decides under Elections Code section 9214, subdivision (a), to adopt the measure as an ordinance. It would not make sense to say one of the council's two options is ministerial but the other is discretionary. Therefore, the council's decision to adopt the initiative cannot be discretionary, the ministerial-projects exemption of Public Resources Code section 21080, subdivision (b)(1), applies to it, and CEQA compliance is not required.
One flaw in this argument has already been indicated by our previous discussion. There is one circumstance in which it does make sense to say the council's decision to hold an election is ministerial even if its decision to adopt the initiative is discretionary. If a city council is presented with a petition signed by 15 percent of the voters, and it does nothing, a court can order it to hold an election, because the petition signers have a right to an election. A court could not order the council to adopt the initiative, however, because the petition signers do not have a right to see their policy enacted without an election.
Another flaw in the argument is that when the Friends of Sierra Madre court stated that placing a voter-sponsored measure on the ballot was
The city, in its return, argues that, by including the option of obtaining a report in Elections Code section 9214, subdivision (c), the Legislature intended to exclude all other forms of environmental review, including CEQA review, in all instances. The city says the existence of this option means "the plain language of the statute" precludes CEQA review. Similarly, Wal-Mart points out in its informal response that the Supreme Court has stated that Elections Code section 9214, subdivision (c), "permits public agencies to
A better explanation of Elections Code section 9214, subdivision (c), is simply that it allows the council quickly to form a rough idea of what the consequences of the initiative will be, environmental and otherwise, before deciding whether to hold an election or adopt the initiative. The report might show the council that it should not adopt the initiative because of possible environmental or nonenvironmental consequences. It might show that the initiative should not be adopted absent more extensive environmental (or other) review. If conclusions of these kinds lead the council to choose the election option over the direct-adoption option, the report can help inform the electorate. None of this is incompatible with a rule that if the initiative will have a significant impact on the environment, CEQA review is required before the city can approve it without an election.
The Supreme Court's remarks in DeVita are compatible with our view. A fuller quotation, providing the context of the remark quoted above, shows that the court's point was that CEQA cannot be used to prevent adoption of an initiative by voters in an election: "[T]he Legislature did not intend such requirements [as CEQA's requirements] to obstruct the exercise of the right to amend general plans by initiative. Elections Code section 9111 [providing, in cases of initiative petitions presented to counties, for a report analogous to the report contemplated by Elections Code section 9214, subdivision (c), for cities] represents a legislative effort to balance the right of local initiative with the worthy goal of ensuring that elected officials and voters are informed about the possible consequences of an initiative's enactment. It permits public agencies to conduct an abbreviated environmental review of general plan amendments and other land use initiatives in a manner that does not interfere
TJSBA's position in this case does not call for preventing the adoption of initiatives by the voters absent CEQA review. It only calls for preventing city councils from adopting initiatives absent both CEQA review and elections.
There is no doubt that Elections Code section 9214 requires the city council to make a decision within the 40-day (or 10-day) period. The fact that CEQA compliance is required if there is to be no election, and that CEQA compliance may often be impossible before the deadline, do not change the statute's mandate to make a decision. In effect, this means that a city council will be compelled to hold an election in all cases in which environmental review has not begun when the voters' petition is presented.
We acknowledge that our holding means the direct-adoption option of Elections Code section 9214, subdivision (b), will usually not be available for an initiative that would have a significant environmental impact, and an election will usually be required. The results in a case like this, in which statutes point in different directions and must be reconciled with one another,
The observation that a city council would be required to hold an election if it could not complete CEQA review within Election Code section 9214's time limits serves to rebut one argument made by Wal-Mart. Wal-Mart contends that TJSBA's position "would permit city councils to thwart voter initiatives." This is not correct. If a city council opposes an initiative, it must hold an election; and if it wants to undertake CEQA review but cannot complete it before the time limit of Elections Code section 9214 expires, it also must hold an election. Elections, of course, do not thwart initiatives.
Real parties in interest also argue that requiring CEQA review before the council can adopt an initiative under Elections Code section 9214, subdivision (a), would be a meaningless gesture because the rule that the initiative cannot be altered means the city would be powerless to impose mitigation measures not already included in the initiative. It is true that the city could not alter the initiative by adding mitigation measures, but that does not mean the city could do nothing meaningful in response to the findings in an EIR. It could withhold its endorsement of the project by choosing to hold an election instead of adopting the initiative, and it could inform the electorate of its objections. Real parties in interest's argument assumes, once again, that there is no important difference between holding an election and adopting an initiative without an election. As we have emphasized, that difference is crucial. A decision to hold an election instead of adopting an initiative can express a city council's nonsupport of an initiative, and at the same time, it makes the difference between giving the electorate the power to make the decision and denying it that power.
Wal-Mart's final argument is that it would be wrong to "force city councils to incur unnecessary and unwanted expenses to hold elections." In the city's return, the city attorney adds that "[i]t is obvious ... that the City and its electorate supported the Initiative" so "no public policy would be served by forcing the City to incur the cost to hold an election."
It would be anomalous in the extreme to hold that CEQA is inapplicable to a city's decision to approve a project based on the city's lawyer's speculation that the local electorate would have voted to approve if the city had not
As for it being obvious that the city council supported the initiative, that is no doubt true, but it does not help real parties in interest's position. A public agency supports the challenged project approval in every CEQA case, but that hardly means CEQA does not apply.
Let a writ of mandate issue directing the superior court to modify its order sustaining in part the demurrer of Wal-Mart and the city. As modified, the order will sustain the demurrer without leave to amend as to the third and fourth causes of action, and overrule the demurrer as to the first and second causes of action. Costs are awarded to TJSBA.
Wal-Mart's motion to strike is denied. TJSBA's requests for judicial notice included in its traverse are granted.
Hill, P.J., and Kane, J., concurred.
election no election
voter petition 1. CEQA exemption 3. No CEQA
(Friends of Sierra exemption (this case)
Madre)
no voter 2. No CEQA 4. No CEQA
petition exemption (Friends exemption (ordinary
of Sierra Madre) agency project
approval)
Situations 1 and 2 are those considered in Friends of Sierra Madre; the Supreme Court's conclusion was that CEQA compliance is required in situation 2 but not in situation 1. Situation 4 is the ordinary case in which a city council simply approves a project and there is no question of a voter initiative. Situation 3 is the present case.
