A ballot initiative that was adopted by a city council was not subject to review under the California Environmental Quality Act, even though the city deviated from state election law regarding ballot measures, the Fourth District Court of Appeal has ruled.
The court held that the city’s process did not deviate from the Elections Code requirements enough to make the city’s action more than ministerial. Ministerial projects are exempt from CEQA.
The ballot initiative in question was drafted in 2002 by Pueblo Serra LLC, which sought to develop a private, Catholic high school at Junipero Serra Road and Camino Capistrano in the City of San Juan Capistrano. Pueblo Serra has a high school in a converted office complex on one 9-acre parcel at the site. Operators of the for-profit school wanted to expand onto an adjacent 29-acre parcel, so they prepared a ballot initiative to change the general plan designation and zoning of the two parcels. The general plan designated the parcels for office research and planned community, respectively. The Pueblo Serra initiative proposed a public and institutional general plan designation, and correlated zoning.
In September 2002, the Orange County Registrar of Voters certified that the initiative petition had enough signatures to qualify for the ballot. The initiative was then presented to the City Council, which negotiated an implementation agreement to mitigate certain impacts. The council adopted the initiative and implementation agreement on October 15, 2002.
Members of the Juaneño Band of Mission Indians formed the Native American Sacred Site and Environmental Protection Association (NASSEPA) and sued the city, arguing that the City Council could not adopt the initiative without CEQA review. The tribe said that the 29-acre parcel was the site of the tribe’s ancient mother village and a burial ground. The tribe had sought to regain control of the land.
Superior Court Judge Ronald Bauer ruled that the city did not have authority to adopt the initiative in conjunction with the implementation agreement because Elections Code § 9214 gives a city only two options: Adopt an initiative “without alteration” or schedule the measure for an election.
In May 2003, the City Council rescinded its earlier action and adopted the initiative exactly as presented. NASSEPA returned to court, but this time Judge Bauer ruled for the city. The Indians appealed, and a unanimous three-judge panel of the Fourth District upheld the lower court.
The Indians argued that the only way the city could adopt the initiative as a ministerial act — and, therefore, exempt from CEQA — was if the city did so within the 10-day period set out in the Election Code. Because the city acted months after being presented with the initiative, the City Council’s action was no longer ministerial, NASSEPA contended.
But the appellate court rejected the argument. “A city’s duty to adopt a qualified voter-sponsored initiative, or place it on the ballot, is ministerial and mandatory,” Justice William Rylaarsdam wrote for the court. “This duty remains even when performance is beyond the statutory time frame.”
“Other than passage of more than 10 days, nothing had changed since the time the initiative petition was first certified and presented to defendants,” Rylaarsdam continued. “Under plaintiff’s analysis, however, this lapse of time acted to invalidate defendants’ power to adopt the voter-sponsored initiative. Considering the intent of the section and the broader statutory and constitutional scheme of which it is a part, that is an absurd result we cannot countenance.”
The Indians argued that the city could conduct a CEQA review of the project or Pueblo Serra could gather signatures on a new initiative. But the court ruled that neither of those alternatives was necessary. The city materially followed the procedures of the Election Code, “[a]nd it is plain that voter-sponsored initiatives are not subject to the procedural requirements that might be imposed on statutes or ordinances proposed and adopted by a legislative body, regardless of the substantive law that might be involved,” the court ruled.
Native American Sacred Site and Environmental Protection Association v. City of San Juan Capistrano, No. G033198, 04 C.D.O.S. 6642, 2004 DJDAR 8947. Filed June 30, 2004. Ordered published July 22, 2004.
For NASSEPA: Susan Brandt-Hawley, Brandt-Hawley Law Group, (707) 938-3908.
For the city: John R. Shaw, Woodruff, Spradlin & Smart, (714) 564-2603.
For Pueblo Serra: Robert Bower, Rutan & Tucker, (714) 641-5100.