In the latest of a series of cases that evaluate the relationship between California’s voter initiative process and the California Environmental Quality Act, the Fifth District Court of Appeal ruled that a city or county may not avoid impact review under CEQA by approving a voter-circulated initiative petition itself, without either submitting the matter to the voters or certifying an environmental impact report, or EIR, for the required approvals. Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County. In 2004, the Fourth District came to the opposite conclusion in Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano, 120 Cal.App.4th 961, holding 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.

The Fifth District’s decision creates uncertainty in an area of CEQA that had seemingly been settled. Developers have, in the past, relied on the constitutional and statutory provisions governing initiative petitions to obtain legislative land use approvals such as a general plan amendment or the adoption of a specific plan or a rezoning for proposed projects without CEQA review. Once the city certifies that proponents of an initiative have collected the required number of signatures, the city council is required under Elections Code §9214 to either adopt the initiative as written, or to place the measure on the ballot for approval by the electorate. Elections Code §9116 sets forth the same process for county boards of supervisors.

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