Authored Articles & Publications Mar 02, 2015

Development Trend to Circumvent CEQA Through Ballot Initiative Emphasizes Need for Reform

By Lindsay D. Puckett

The Los Angeles Times recently reported that proposed football stadium developers have chosen to incur the cost of collecting signatures to qualify an initiative for the ballot to obtain land use approvals rather than face what is often a lengthy and unforeseeable environmental review process under the California Environmental Quality Act — even where some environmental review has already been completed. This process was blessed by the California Supreme Court last year when considering an initiative for a proposed Walmart expansion project in Tuolumne Jobs & Small Business Alliance v. Superior Court. The Court held that land use authorities are not required to conduct environmental review under CEQA before adopting a voter-sponsored initiative based in part on the impracticalities of completing such review within the time period for adopting a voter-sponsored initiative under state law. Existing law had established that CEQA compliance is not required before a legislative body submits an initiative to voters.

Cities and counties may adopt a land use initiative that has not been altered without holding an election or conducting environmental review under CEQA. This approach allows larger projects to bypass the uncertainties of CEQA litigation brought by project opponents, regardless of whether such litigation is motivated by genuine environmental concerns or simply a desire to halt the development. In reaching its decision, the Supreme Court considered the possibility of direct adoption of an initiative for the purpose of avoiding CEQA review or even to curb development, but the Court concluded those concerns are best addressed by the Legislature or through referendum petition to overturn an ordinance adopted against the majority’s will. The article raises the broader question of whether the attraction of “ballot box zoning,” and other recent exceptions to CEQA adopted by the Legislature that forgo or streamline environmental considerations in land use planning, are symptoms of the greater need for reform of the law to further important public and private projects while maintaining its objectives.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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