Lee v. City of Lompoc

• Decision Date: 15 April 1993
• Docket Number: No. B066615,B066615
• Citation: 14 Cal.App.4th 1515,18 Cal.Rptr.2d 389
• Court: California Court of Appeals Court of Appeals
• Parties: Steven C. LEE et al., Plaintiffs and Appellants, v. CITY OF LOMPOC et al., Defendants and Respondents; DIVERSIFIED SHOPPING CENTER, Real Party in Interest and Respondent.

Page 389

18 Cal.Rptr.2d 389

14 Cal.App.4th 1515

Steven C. LEE et al., Plaintiffs and Appellants, v. CITY OF LOMPOC et al., Defendants and Respondents DIVERSIFIED SHOPPING CENTER, Real Party in Interest and Respondent.

No. B066615.

Court of Appeal, Second District, Division 6, California.

April 15, 1993.

Davis, Cowell & Bowe, Steven L. Stemerman and Marjorie M. Alvord, San Francisco, for plaintiffs and appellants.

David H. Hirsch, City Atty., and Sharon D. Stuart, Deputy City Atty., for defendants and respondents City of Lompoc and City Council for City of Lompoc.

Rutan & Tucker, Michael D. Rubin, Costa Mesa, and S. Daniel Harbottle, Crona Del Mar, as amici curiae on behalf of respondents.

Stradling, Yocca, Carlson & Rauth, E. Kurt Yeager, Ronald A. Van Blarcom and David H. Mann, Newport Beach, for real party in interest and respondent.

STEVEN J. STONE, Presiding Justice.

Does the California Environmental Quality Act apply to a city council's decision to call for a special election to have the electorate decide whether to amend a General Plan and Zoning Ordinance? We hold it does not.

Steven C. Lee and Anthony Marvin Armas appeal from judgment denying issuance of a writ of mandate. They brought this action to challenge the adequacy of environmental review for the Diversified Shopping Center Project (DSC Project). This project required dedication to commercial uses of a significant portion of the City of Lompoc's Central Avenue Specific Plan (CASP), previously set aside for industrial and business park purposes but being used for agricultural purposes. The City had an environmental impact report (EIR) prepared upon which public hearings were held. Appellants opposed the project at various proceedings before the City's Planning Commission and City Council on both the EIR and the project itself. The Planning Commission recommended denial of the Amendments being considered by the City in conjunction with the DSC Project. After certifying the final EIR as complete, the City Council deadlocked on the proposed land use amendments. To resolve the impasse, the City Council submitted to the voters at a special election whether to amend the designated land use to allow commercial development. (Elec.Code, § 4017.) ¹

After the electorate voted to adopt the proposed changes to the General Plan, CASP, and the Zoning Ordinance, appellants filed a petition for writ of mandate. They sought an order commanding the City to set aside the approval and certification of the EIR for the DSC Project made pursuant to the California Environmental Quality Act (CEQA), as well as the special election called regarding the General Plan, CASP, and Zoning Ordinance changes necessary to the DSC Project.

Appellants asserted that the EIR was inadequate in its description of land use amendments, in its consideration and description of project alternatives and implications of rezoning, and in its failure to consider the potential industrial uses for which the area was currently zoned. They also alleged an invalid election.

The trial court determined that the decision of the electorate "is the paramount authority and cannot be diluted by judicially adding on additional requirements." The court found two aspects to the present controversy: the first involves the applicability of CEQA to the General Plan, specific plan and zoning changes where the electorate has taken part and the second involves the requirement that the particular shopping center project comply with CEQA if the land use is changed. The court found that CEQA did not apply to the electorate's approval of the land use changes but did apply to the ultimate development project after zoning changes have been made.

The court also found that the alleged errors in the election process and discrepancies in the proposed ordinances and resolutions were not of such substantial nature to require voiding the election and denied the petition.

DISCUSSION

1. Applicability of CEQA to Council-initiated Ballot Measures Regarding Land Use Changes.

Appellants assert that the City's environmental review obligations under the CEQA (Pub.Resources Code, § 21000 et seq.) were not vitiated when the City's legislative body called a discretionary election under Elections Code section 4017. They contend that where holding of the election is part of a project affecting the environment and is subject to discretionary approval by the public agency, CEQA compliance is required before a valid plebiscite may be held. According to appellants, the discretionary act of placing the matter on the ballot was a first step or prerequisite to approval of the construction project.

Both initiative and referendum powers have been held applicable to zoning ordinances. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 539, 277 Cal.Rptr. 1, 802 P.2d 317.) Courts must resolve all doubts in favor of the people's exercise of this power. (Ibid.) However, the policy of upholding elections will be invoked only where irregularities were merely incidental to the result, but not where " 'the fair expression of popular will' " was prevented. (Canales v. City of Alviso (1970) 3 Cal.3d 118, 127, 89 Cal.Rptr. 601, 474 P.2d 417.)

Balanced against our reluctance to set aside lightly the results of an election is the recognition of the legislative intent underlying CEQA. " 'The foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." ' " (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564, 276 Cal.Rptr. 410, 801 P.2d 1161.) The EIR is a document of accountability; if CEQA is scrupulously fulfilled, the basis upon which responsible officials either approve or reject environmentally sensitive actions is revealed to the public. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2, 253 Cal.Rptr. 426, 764 P.2d 278.)

CEQA applies only to "... discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits and the approval of tentative subdivision maps...." (Pub.Resources Code, § 21080, subd. (a).) ² Section 21080 does not apply to ministerial projects proposed to be carried out or approved by public agencies or projects which a public agency rejects or disapproves. (§ 21080, subds. (b)(1) & (5).)

"Project" as it pertains herein can be either "(a) Activities directly undertaken by any public agency" or "(c) Activities involving the issuance to a person of a lease permit, license, certificate, or other entitlement for use by one or more public agencies." (§ 21065.) The Secretary of the Resources Agency by authority of section 21083 has adopted regulations for interpreting CEQA (14 Cal.Code of Reg., § 15000 et seq., hereinafter referred to as "Guidelines.") Guidelines section 15378 interprets "Project" to mean "the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately," and includes enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code sections 6511-65700. "Project," under the Guidelines, does not include "The submittal of proposals to a vote of the people of the state or of a particular community. (Stein v. City of Santa Monica [1980] 110 Cal.App.3d 458 .)" (Guidelines § 15378, subd. (b)(4).)

In Stein v. City of Santa Monica, supra, the issue was whether CEQA applied to an urban rent control initiative charter amendment. The appellate court held that the act of placing an initiative measure on the ballot in response to a citizen's petition is not a "project" contemplated by CEQA. Stein stated that "public agency," as defined in section 21063, includes "city" but does not include the electorate itself. The court held that since Government Code section 34461 provided that the city " '... shall submit the amendment ... to the electors,' " if the petition had the requisite number of signatures, the procedure employed in amending the charter involved no discretionary activity directly undertaken by the city. "The acts of placing the issue on the ballot and certifying the result as a charter amendment qualifies as a nondiscretionary ministerial act not contemplated by CEQA." (110 Cal.App.3d 458, 461, 168 Cal.Rptr. 39; accord, Northwood Homes, Inc. v. Town of Moraga (1989) 216 Cal.App.3d 1197, 1206, 265 Cal.Rptr. 363.)

Appellants contend that there is a distinction between elections brought about by citizens' initiative (Elec.Code, § 4011) and elections brought about by "voluntary referendum," i.e., by the public agency's calling for a special election (Elec.Code, § 4017). Respondents, to the contrary, contend the trial court was correct in finding that ballot measure by initiative, as opposed to ballot measure proposed by a local governmental body, is a distinction without a difference. Appellants rely on People ex rel. Younger v. Local Agency Formation Com. (1978) 81 Cal.App.3d 464, 146 Cal.Rptr. 400 and Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 187 Cal.Rptr. 398, 654 P.2d 168, disapproved on other grounds in Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918, 13 Cal.Rptr.2d 245, 838 P.2d 1198, for the proposition that CEQA applies where agency-initiated elections occur.

Younger, which was distinguished in Stein, involved a proposed deannexation of a portion of San Diego. The Local Agency Formation Commission (LAFCO) determined that an EIR was not required and filed a negative declaration. (81 Cal.App.3d 464, 470, 146 Cal.Rptr. 400.) The trial court issued a...