A referendum of a $200 million agreement between the City of Rohnert Park and an Indian tribe planning to build a large casino has been blocked from the ballot. The First District Court of Appeal upheld a lower court ruling that the Rohnert Park City Council’s approval of the agreement was an administrative act not subject to referendum.
Referendum supporters argued that the City Council made a policy decision that committed the city to a course of action that was counter to the city’s general plan. However, the court ruled that a policy decision is not necessarily the same thing as a legislative decision — which would be subject to referendum. In this case, the court said, the city made policy, but only by a contractual agreement with the tribe and not by any legislative act that would require the tribe or any other party to take a particular action.
The appellate court decision was the latest in a string of losses for opponents of the casino and resort, proposed for 360 acres of unincorporated land west of Rohnert Park. In October 2003, the City Council approved an agreement with the Federated Indians of Graton Rancheria, whose sovereign status Congress restored three years earlier. The act of Congress permitted the tribe to select land in Marin and Sonoma counties for its reservation. The Graton Rancheria chose the site outside Rohnert Park and soon announced plans to partner with Station Casinos of Las Vegas on a large casino, resort and performing arts center. The tribe also started talking with local governments.
The Sonoma County Board of Supervisors turned down $120 million from the tribe because the money came with the condition that the board not oppose the proposed casino, which still needs both federal and state clearance. However, Rohnert Park was willing to accept a no-opposition clause as part of its memorandum of understanding with the tribe that would pay the city $140 million over 20 years, and would provide $60 million to community nonprofit organizations and the Cotati-Rohnert Park School District. The land in question is located outside the city’s sphere of influence and its urban growth boundary, meaning it is not subject to the city’s regulatory authority.
The council’s approval of the deal came despite the vocal protest of hundreds of people. The deal resulted in recall efforts against Councilmembers Armando Flores and Amie Spradlin. However, they retained their offices during a special election in August 2004.
In addition to the recall, casino opponents went the referendum route. Local pastor Chip Worthington and other members of a committee gathered signatures on a referendum petition; however, the city refused to place the matter on the ballot.
Opponents then sued the city, arguing that the MOU was a legislative policy decision that effectively amended the city’s general plan. The city countered that the memorandum of understanding was no different from any other contract. The MOU’s approval was merely an administrative act, the city argued, and administrative acts are not subject to voter referendum.
Sonoma County Superior Court Judge Laurence Sawyer ruled for the city. The casino opponents appealed, and a unanimous three-judge panel of the First District Court of Appeal, Division One, upheld the lower court.
The First District conceded that the City Council may have made a policy decision by approving the MOU. But that “does not make the act legislative in nature,” Presiding Justice James Marchiano wrote for the court. “By definition, a legislative act necessarily involves more than a mere statement of policy. It carries the implication of an ability to compel compliance.”
“When an action requires the consent of the governmental entity and another party, the action is contractual or administrative,” Marchiano continued. “The give and take involved when a governmental entity negotiates an agreement with a sovereign Indian tribe is not legislation, but is a process requiring the consent of both contracting parties.”
Ultimately, the court pointed out, the federal government — not a local government — decides the location of tribal land and whether it may be used for a casino. “Whether a local government approves or chooses to voice its disapproval is not legislation and therefore is not subject to referendum,” the court ruled.
The fact that the Interior Department has not yet taken the land into trust for the tribe, and the fact that the tribe still lacks a compact with the state, do not alter the character of the city’s action, the court ruled. “The tribe’s political decision to blunt preemptively opposition from neighbors does not convert the resulting MOU process into local legislation,” Marchiano wrote.
As for the general plan, casino opponents argued that the MOU conflicted with the land’s designation as open space. The MOU calls for the tribe to pay for road widening and installation of a traffic signal.
However, both sides agreed that, although the site is within the city’s planning area, it is outside both the city’s 20-year urban growth boundary and the city’s sphere of influence. Sonoma County has land use regulatory authority.
Moreover, “the MOU expressly provides that the city is not required to extend any infrastructure and that if future improvements are necessary, additional reviews and approvals may be required,” Marchiano concluded. “In light of the location of the proposed project and the preliminary status of the actions contemplated by the MOU, no inconsistency with the general plan is shown.”
After the court ruled, Station Casinos maintained that the casino was only two years from opening. However, the project has not yet received either federal or state clearance, and an environmental impact statement has been delayed for months.
Worthington v. City Council of the City of Rohnert Park, No. A107547, 05 C.D.O.S. 5865, 2005 DJDAR 8057. Filed June 30, 2005.
For Worthington: John Douglas Moore, Henn, Etzel & Moore, (510) 893-6300.
For the city: Michelle Kenyon, McDonough, Holland & Allen, (510) 273-8780.