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Cities Seize Chances to Avoid CEQA Review through Voter Initiatives

Josh Stephens on
Apr 28, 2015

After 20 years, Los Angeles is on the verge of obtaining a new National Football League team. And as it turns out, the winning play for the NFL in Los Angeles may have been drawn up in a courtroom in Sacramento. In the cities of Carson and Inglewood, competing sponsors of stadium proposals are employing, simultaneously, a newly legitimized tactic to exempt their projects from review under the California Environmental Quality Act. Carson used the tactic to approve its stadium last week in record time. 

Last year, the California Supreme Court decided Tuolomne Jobs & Small Business Alliance v. Superior Court of Tuolomne County  in favor of Walmart, which had proposed a ballot initiative to approve a superstore in the City of Sonora. Before the initiative went to voters, the city council adopted the language of the initiative, effectively approving the project and claiming the CEQA exception that would have been granted had voters actually approved the project.

It was a clever maneuver that combined two quirks of the California initiative process – the ability of a local government to simply adopt an initiative rather than place it on the ballot and the fact that the courts have ruled, particularly in 2001's Friends of Sierra Madre v. City of Sierra Madre, that initiatives are not subject to CEQA review because the constitution trumps statute. The court ruled that the California Elections Code allowed for this maneuver. 

The Tuolumne decision means that, essentially, CEQA review can be avoided not only by popular vote but also by council action – if the council is adopting an initiative that has qualified for the ballot. Members of California's environmental community have feared that the ruling opens up a huge hole in the state's defensive line against environmentally insensitive development. 

"I think the decision, if you just look at the legal background and what the election code says, was correctly decided," said David Pettit, senior attorney with the Natural Resources Defense Council. "I think it's a bad decision in terms of public policy, because you're cutting out… two most important values of CEQA." Pettit described those values as public participation and the ability of opponents of a project to file lawsuits if they believe an EIR is faulty. 

The Tuolumne precedent applies to any potential project that falls under CEQA jurisdiction. But the coincidence of two high-profile projects both employing the tactic of council approval of proposed ballot measures suggests that developers and public officials are eager to use the new tool to speed up some projects. 

In Inglewood, more than 22,000 residents signed a petition to place the proposed stadium and entertainment center on the ballot. Proposed by a partnership between Stan Kroenke, the owner of the St. Louis Rams, and Stockbridge Capital, the major partner in the mixed-use redevelopment of the Hollywood Park race track site (http://www.cp-dr.com/articles/node-2337), the 80,000-seat stadium would presumably house a relocated Rams team. 

Shortly after the group submitted its signatures in late January, the Inglewood City Council indicated that it would dispense with the actual vote and proceed with direct approval of the language of the ballot initiative. City officials considered the actual vote to be superfluous. Opponents of the stadium project circulated a petition to place on the ballot a referendum that would un-do council approval, but that effort appears to be waning. 

"We had more people sign the initiative than had ever voted in an election in Inglewood, so we were certain that it was going to pass," said Inglewood Mayor James Butts. "We would have spent $200,000 on an election for something we knew would pass."

Butts added that the Hollywood Park redevelopment has been planned since 2006. It is only now getting underway, having spent three years going through the CEQA process and weathering the 2008 recession. 

A similar pattern is playing out in Carson, where a partnership between the Oakland Raiders and the San Diego Chargers has proposed a stadium that would house both teams. Backers submitted 14,000 signatures – almost double the required number – March 21. The City Council approved the project one month later.

With both stadiums headed for approval the question is whether they will inspire an onslaught of similar attempts or whether they amount to two high-profile anomalies. It may turn out that the Tuolumne tactic makes sense only under specific conditions. 

"I can certainly see the appeal of this tactic, if you've got a smaller city and you feel that people just want the jobs more than anything else," said Pettit. "In a place like L.A. or San Francisco, I think it's very less likely to work."

Large cities pose a challenge because of political rivalries and the challenges of amassing the tens of thousands of signatures that may be required to put a question on the ballot. Conversely, projects that are not on the billion-dollar order of a football stadium may have relatively little trouble with the conventional CEQA process in the first place. 

As well, competition between Inglewood and Carson may have prompted them to use the Tuolumne tactic to fast-track approvals, since it is likely that the NFL will approve a team (or teams) for only one of the two projects. 

"When you have a situation like this where there are competitors that want to do what you're doing, to unnecessarily slow yourself down, it's suicidal economically for your community," said Butts.

Butts said that one of the benefits of using the Tuolumne provision is that it makes the project much less susceptible to lawsuits, including, he said, lawsuits that could be filed by the competition in Carson. 

"What I don't like about CEQA….you open yourself up to people outside your community suing you," said Butts. "I am certain that would occur."

Supporters of the tactic insist that council approval of a would-be vote is not lacking in safeguards. And supporters have to ensure that the project that is circulated for the vote and approved by the council is essentially shovel-ready. By contrast, the EIR process gives developers the chance to introduce mitigation measures along the way. 

Carson City Attorney Sunny Soltani insisted that, were the City Council to approve the language of the ballot initiative (which has not yet come before the council), it would be anything but a rubber stamp. She said that the Council reserves the right to conduct its own environmental analysis of the proposal and to reject it if it causes what they consider undue impacts. 

"The council can require staff to hire consultants to look at the initiative's mitigation measures to see if they are giving due consideration to the issues that they would be concerned about," said Soltani.

Butts said that the Inglewood stadium proposal amounts to a modification of the existing Hollywood Park redevelopment plan, which had a full EIR. He emphasized that it will not generate significantly more traffic than the racetrack did or than the nearby Forum does. 

He said that the city would not be approving the project were it not for those existing conditions and the rigor of the review that has already been conducted. 

"It wasn't like we were going to put a nuclear power plant or even a gas station," said Butts. "It was a substitute entertainment venue."

Nonetheless, cities and developers are likely to explore the precedent that Tuolumne has set. Pettit said that he would "definitely" advise clients to pursue this tactic if he was representing developers and not environmental interests. 

"I think the development community is watching these two stadiums with huge interest," said Petit. "If it does work, I think you're going to see...a fair amount of development projects using this instead of going through CEQA." 

It remains to be seen whether the Legislature agrees with Pettit and other environmentalists who say that the ruling violates the spirit of CEQA. 

"I do believe it is outside the intent of CEQA, which is to not let public agencies escape their responsibilities by passing them off to the voters," said attorney Antonio Rossmann. "The interesting thing to watch for will be this year to see if, after going back and forth on CEQA, there is a consensus that builds around some CEQA amendments. And if changes to CEQA prove too controversial, as they often have, there may be opportunities to amend the Elections Code instead." 

Contacts: 

James Butts, Mayor, City of Inglewood, (310) 412-5111

 David Pettit, senior attorney at the Natural Resources Defense Council, 310-434-2300

Antonio Rossman, partner at Rossmann and Moore, LLP, (415) 861-1401

Sunny Soltani, City Attorney, City of Carson, (949) 250-5407