Court of Appeal Creates CEQA Uncertainty

Michael Zischke and Kenneth Bley wrote an opinion piece that ran in The Recorder on Nov. 20, 2012, about a Fifth District Court of Appeal ruling involving California's voter initiative process and the California Environmental Quality Act. In it, the court found that cities or counties cannot avoid review under CEQA by means of a voter-circulated initiative petition and must either submit the matter to voters or certify an environmental impact report. The case is Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County.
 
According to Zischke and Bley, the ruling is in direct conflict with the Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano. That 2004 ruling by the Fourth District Court of Appeal held that “legislative bodies have no discretion under the Elections Code when presented with an initiative signed by a sufficient number of voters, and thus a council or board approval of such a measure is not subject to CEQA.”
 
As a result, the Fifth District ruling has created uncertainty for developers involving an area of CEQA that had seemingly been settled, the authors wrote.
 
“Given this split of authority between Native American Sacred Site and Tuolumne Jobs, there is now substantial legal uncertainty regarding CEQA's application to council or board adoption of voter initiatives,” Zischke and Bley wrote. “It is likely the Supreme Court will be asked to review and/or depublish the Tuolumne Jobs decision, but for now this is another area of CEQA practice that is uncertain and governed by conflicting court decisions.”