Strange CEQA rules apply when land use regulations are enacted as the result of a citizen initiative, and a recent case suggests that those rules may be changing. Courts have uniformly held that CEQA review is not required when citizens enact a land use measure by initiative. But what if a city chooses, as it is allowed under state law, to enact the citizens’ land use initiative measure as its own, rather than putting it on the ballot?

After the 2004 decision in Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano, most public law practitioners would advise that CEQA was not required because the Court had found that the city’s decision was ministerial. In the years that followed, project proponents increasingly sought to use the initiative process to avoid CEQA review to streamline the permitting process.

However, the 2012 decision in Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) cast doubt over this strategy. There, the Court found that the city’s decision to adopt a citizen initiative that would have dispensed with the need for discretionary approval of a Wal-Mart expansion (and thus exempt the expansion from CEQA review) was discretionary, and thus CEQA review was required. The Court expressly declined to follow the decision in Native American Sacred Site, and ordered its decision published, creating a split of authority in the courts and leading several parties to petition the California Supreme Court for resolution.

Through this presentation, members will gain an understanding of how the citizen initiative process affects CEQA review, a topic of increasing relevance to planning professionals throughout the state. Members will also come away with a basic understanding of the split of authority in the courts and the status of the petition for review before the California Supreme Court.

Instructors:

Matthew D. Visick

Alexandra Barnhill

(51 Ratings)