The California Supreme Court recently held that a public agency cannot avoid compliance with the California Environmental Quality Act (CEQA) by submitting a project to voters as an initiative measure if the measure was proposed by the public agency. Friends of Sierra Madre v. City of Sierra Madre, 105 Cal. Rptr. 2d 214 (Cal. 2001).] The Court invalidated a municipal ordinance removing several local properties from historic preservation status, after determining the City Council of Sierra Madre’s (City’s) discretionary submission of the ordinance to voters as an initiative measure was a project subject to CEQA. In addition, the Court held that although the ordinance could not be challenged by means of an "election contest," because the ordinance was invalid it was subject to attack by other means.
In 1997 City enacted an ordinance establishing a process by which an owner of property listed on City’s “Register of Historic Landmarks” could have the property “delisted.” The owners of 29 listed properties wanted their properties removed from the list, but balked at paying for environmental impact reports (EIRs) on each property to assess the impact of delisting, as required by CEQA.
In hopes of both accommodating the property owners and avoiding CEQA requirements, City looked to CEQA Guidelines that exclude from the definition of a CEQA project “[t]he submittal of proposals to a vote of the people of the state or of a particular community.” City thereafter drafted, approved, and submitted to voters, an initiative measure proposing an ordinance that delisted the 29 properties. City placed the measure on the April 14, 1998, election ballot. The measure passed, and this action by Friends of Sierra Madre and others (Friends) followed.
The trial court set aside the ordinance on grounds that City had violated the Election Code in its enactment, but specifically held CEQA did not apply. The Court of Appeal disagreed, holding CEQA was applicable. It also held, however, that the Election Code had not been violated but that the court had authority to invalidate the ordinance based on remedies available under CEQA. City again appealed.
The Supreme Court’s analysis focused on the purpose of CEQA and its Guidelines. Though CEQA is directed primarily to ecological and environmental concerns, the Act clearly applies to historic structures and states as a policy objective the preservation of “examples of the major periods of California history.” CEQA requirements – automatically triggered by any non-exempt proposed public or private project – include preparation of an EIR to inform the agency and the public about the likely effect of a project on the environment and potential ways to minimize that impact. Under Public Resources Code section 21080, the Court noted, although CEQA requirements apply to “discretionary” projects approved or carried out by public agencies, “ministerial” projects so approved or carried out are expressly exempt.
Though the CEQA Guideline at issue, section 15378(b)(3), excludes “submittal of proposals” to voters from its definition of a “project” under CEQA, it specifically incorporates a Court of Appeal decision, Stein v. City of Santa Monica, 110 Cal.App.3d 458 (1980), into the definition. The Stein case held an initiative charter amendment placed on the ballot by a municipality in response to a voter-generated petition, was exempt from CEQA because only a ministerial, and not a discretionary, activity was required of the city, in that the city simply placed the matter on the ballot as required by the electorate. The Supreme Court found it significant that the California Resources Agency had referred to the Stein citation in the Guideline, because it suggested “the agency intended that the exemption apply only in the Stein situation, i.e., when placing an initiative measure on the ballot was a ministerial act compelled by law.” The Court further noted that such an interpretation was consistent with section 21080, excepting only “ministerial projects” from CEQA requirements. A city council-generated ballot measure, said the Court, is not ministerial but is discretionary in nature. Thus, the Court held, the exemption on which City had relied in placing the delisting measure on the ballot was inapplicable. City’s submission of the measure to voters therefore was not exempt from CEQA, rendering the ordinance in question invalid.
As to the issue concerning the proper remedy in the case, the Court agreed with City’s argument that Friends’ action was not permissible as an "election contest" under section 16100. The Court held, however, that because City’s failure to comply with CEQA invalidated the ordinance, Friends were entitled to proceed under Public Resources Code section 21168.5, authorizing use of a petition for writ of mandamus to set aside the pubic agency’s action. Because Friends’ petition in the case adequately alleged CEQA non-compliance and the record confirmed non-compliance, the Court held that “the appropriate relief is invalidation of the ordinance.”
This case is significant because it may limit a city’s ability to effect compromise solutions to controversial projects. City councils often will use a council-generated ballot measure to give constituents an alternative to an existing, voter-intiated measure of which the council disapproves. Being required to comply with CEQA will curtail, and possibly eliminate, a council’s ability to promptly place its own, competing measure on a ballot.