Legal Digest: Tuolumne CEQA Ruling Sets Stage For Supreme Court Showdown
In case you missed the recent legal tremor, be advised that land-use lawyers are looking closely at a new appellate court ruling from Tuolomne County on the application of the California Environmental Quality Act to citizen initiatives. The new ruling is in direct conflict to a ruling from a different appellate district in 2004, possibly setting the stage for a showdown in front of the California Supreme Court.
In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___ the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora.
An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel and dispense with the need for a discretionary permit – thus making it easier for Wal-Mart to obtain approval.
Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own.
Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained, effectively upholding the city’s action. The petitioners, Tuolomne Jobs and Small Business Alliance, then filed a writ petition with the Fifth Appellate District, which granted, effectively reinstating the CEQA claim at the trial court.
The City and Wal-Mart argued strenuously to the appellate court that the city’s actions were ministerial and that the published court decision in Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004), 120 Cal.App.4th 961, had settled the question. In that case, the Fourth District Court of Appeal upheld San Juan Capistrano’s decision to enact a zone change initiative, rather than putting it on the ballot, was not subject to CEQA.
Based on these arguments, the City of Sonora and Wal-Mart argued that CEQA did not apply to the city council option to enact the measure (as compared to placing the matter before the voters.) The Fifth Appellate District wasn’t buying it however, expressly declining to follow Native American Sacred Site and finding the Council was exercising discretion if it enacted the measure as its own. To further cement its disagreement with the Fourth Appellate District, the Tuolumne court then ordered its decision published, potentially setting the stage for resolution by the California Supreme Court.
Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___