New CEQA cases could have far-reaching effects on landuse

We are tracking two CEQA cases that may significantly affect landuse projects in the State of California.  The first case, Tuolumne Jobs, involves an attempt to expand a Wal-Mart Store in the City of Sonora.  An EIR was prepared for the project under CEQA, and the project was approved by the Planning Commission.  Upon approval from the Planning Commission, the Store collected signatures from over 15% of the local electorate in support of the project.  The petition was  presented to the City Council that is mandated by statute to either submit the initiative to a general vote of the people or approve the petition by ordinance without alteration.  The City chose to adopt the petition and approve the project.  But the City never finalized the EIR.  The City was sued for failing to comply with CEQA.  The City defended the project approval arguing that voter initiatives are exempt from CEQA review because the State Constitution requires it, the adoption of the ordinance is ministerial, and the statutory time period for adopting the ordinance precludes full CEQA review.  This position is supported by the California Constitution, the statutory language, and California Supreme Court precedent.  However, the Fifth Appellate District ruled against the City holding the exemption does not apply when a City adopts the petition and approves the project by ordinance.  This decision has created a conflict with another appellate district and will be petitioned to the California Supreme Court.

Another appellate decision, Preserve Wild Santee, addresses, but does not resolve, another important CEQA question:  When an EIR is found inadequate, must the whole EIR be decertified, as well as all project approvals, or may a trail court remand the EIR to fix the deficient parts.  The court concluded that in certain cases a court could allow the agency to fix an inadquate EIR without rejecting the entire project.