Friends of Sierra Madre v. City of Sierra Madre

Opinion

This case presents an issue important to local governments and those interested in historic preservation: whether an initiative ballot

At the December 9, 1997, city council meeting, the chairperson of the CHC asserted that the initiative or referendum process might not free the properties from the CEQA EIR requirement and argued that the council had an obligation to consider the historic merit of each property. CHC also claimed that the statement provided to the voters did not properly state the purpose of the ordinance or describe the consequences of delisting, and did not warn that the properties would still be subject to CEQA. A property owner in attendance stated that the ordinance was not intended to determine if the 29 properties were historic. It was to fulfill a promise of the council that listing was to be voluntary and to save the city the cost of preparing an EIR. The city council adopted resolution No. 97-69, by means of which Ordinance No. 1-97-1 was submitted to the voters.

On February 10, 1998, the city administrator reported to the city council on an agenda item that proposed to adopt, as Sierra Madre Ordinance No. 1151 (Ordinance No. 1151), an amendment to section xyz of Ordinance No. 1-97-1 for clarification purposes, this amendment to be effective only if Ordinance No. 1-97-1 were adopted. As amended, section xyz of Ordinance No. 1-97-1 would read (with changes in the language italicized);

“Section xyz: the voters of the City do hereby de-list (de-designate) the following described properties from the effects of: 1) ordinances 1036 and 1134; 2) from the effects of those portions o/the General Plan which relate to historic preservation; and 3) from the effects of any federal, state, or local regulation, guideline or other imposition as a result of such properties having been listed as historic under ordinances 1036 and 1134. Such de-listing shall not deprive the City Council of authority or jurisdiction to modify this Ordinance in the future.”

At the February 10, 1998, city council meeting, proposed Ordinance No. 1151 was discussed. The city attorney advised that the ballot language of Ordinance No. 1-97-1 could not be changed but the measure could be

At the April 14, 1998, election, Ordinance No. 1-97-1 received an affirmative vote of 1,536, with 846 persons voting against it.

Friends of Sierra Madre and Margaret Buckner filed the instant action, a petition for writ of mandamus, in the Los Angeles County Superior Court on June 8, 1998. Both the City of Sierra Madre and the city council are named as respondents. Alleging that the initiative process had been used to delist the 29 properties solely to avoid environmental review of the consequences, plaintiffs sought to set aside and void the election and all approvals relevant to Ordinance No. 1-97-1, alleging failure to comply with CEQA. The petition also alleged violation of the Elections Code on the ground that amending Ordinance No. 1-97-1 to materially change its scope and intent in advance of

In an answer to the petition, the city and the city council asserted that the petition failed to fully, fairly, and accurately describe the various proceedings leading up to the adoption of Ordinance No. 1-97-1. They also asserted, among several affirmative defenses, that CEQA was not applicable to Ordinance No. 1-97-1 or to the actions related thereto taken by the city and that there had been no violation of any law; specifically that neither Public Resources Code section 21167 nor Elections Code section 9295 had been violated.

Petitioners asserted in their opening trial brief that, while properties listed in the city’s register of historic landmarks may not be significantly altered or demolished without review by the CHC, nonlisted properties are granted “ministerial over-the-counter demolition permits” under Sierra Madre Municipal Code section 15.04.115. With respect to the alleged Elections Code violation, they asserted that the election procedure and materials failed to comply with Elections Code sections 9280, 9281, 9282, and 9223.

Respondents contended, inter alia, that the city council had not approved Ordinance No. 1-97-1, but had simply submitted it to the voters for ratification. Relying on section 15378, subdivision (b)(4) of the CEQA Guidelines, they argued that it was a measure submitted to the voters for approval and thus was not a project subject to CEQA. They also argued that petitioner misconstrued the demolition ordinance, which requires mitigation measures when the owner proposes to demolish a historical building and gives the city the power to evaluate the mitigation measures, and that the members of the city council and the owners of the delisted properties understood that demolition would be subject to CEQA review. The demolition ordinance required that notice of a request for a demolition permit be given to all members of the city council and city commissions. Section IV.C.2.Í of the Guidelines for Implementing the California Environmental Quality Act for the City of Sierra Madre triggers CEQA review whenever a historic structure is affected. Moreover, petitioners had neither sought a preelection injunction nor initiated a proper election contest under Elections Code section 16100 and, assuming the action was a proper challenge, had not brought it within the 30 days permitted by Elections Code section 16401, subdivision (d).

Relying on the administrative record, on documents submitted as exhibits to the pleadings, and on matters of which judicial notice was taken, including a copy of the sample ballot, the trial court granted a peremptory writ of

The judgment recited that the petition was granted only as to the Elections Code violation and was denied as to the CEQA issues. “The sample ballot neither informed voters of precisely what they were voting on nor directed them to where they could find it, and the election was therefore fundamentally unfair.”

The city and city council appealed from the judgment, except insofar as it denied relief on the CEQA claim. Petitioners filed a cross-appeal from the CEQA ruling.

The Court of Appeal Judgment

The Court of Appeal first concluded that the city had substantially complied with the Elections Code. It, too, rejected the argument that a challenge to ballot materials may be made only before the election, noting that several courts have considered such challenges postelection. (See California Gillnetters Assn. v. Department of Fish & Game (1995) 39 Cal.App.4th 1145 , 1164 [ 46 Cal.Rptr.2d 338 ].) Then, relying on Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766 , 777-778 [ 261 Cal.Rptr. 108 ], it considered whether the deficiencies in the ballot measure affected the ability of the voters to make an informed choice.

Horwath v. City of East Palo Alto, supra, 212 Cal.App.3d at pages 777-778, held that due process mandates invalidation of a ballot measure only if “the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. In conducting this inquiry courts should examine the extent of preelection publicity, canvassing and other informational activities, as well as the substance or content of such efforts. The ready availability of the text of the ordinance, or the official dissemination and content of other related materials, such as arguments for or against the measure, will also bear on

After examining the ballot materials and the circumstances in which Ordinance No. 1-97-1 had been placed on the Sierra Madre ballot, the Court of Appeal concluded that the purpose of the measure was clearly and unambiguously set forth in .the ballot materials and that any informational deficiencies in the Impartial Analysis were ancillary to the main purpose of Ordinance No. 1-97-1. There had been extensive public debate before the election, several public hearings, and the mailing of a sample ballot and a letter clearly explaining the purpose and intent of Ordinance No. 1-97-1 and the reason for Ordinance No. 1151. There was no evidence in the record that the voters were confused or that the deficiencies alleged had affected the fundamental fairness of the election. Therefore, the violations of Elections Code section 9280 did not require invalidation of the measure on due process grounds.

The Court of Appeal then considered whether Ordinance No. 1-97-1 should be invalidated because it was a project subject to CEQA requirements. The court concluded that delisting historic properties was a project within the meaning of CEQA because delisting led to a change in legal status removing the evidentiary presumption of Public Resources Code section 21084.1 that a listed structure is a historically or culturally significant resource and may, in Sierra Madre, remove the property from the jurisdiction of the CHC and the historic preservation ordinance, Sierra Madre Ordinance No. 1036. Although the city might still have the power to review the historical significance of the property when a demolition permit was sought, delisting might have the effect of removing the property from CEQA requirements for other types of use, for building permits for alteration, and for relocation of the property. Thus, delisting constituted a project with an effect that might cause a substantial adverse change in the significance of an historical resource.

The court also held that Ordinance No. 1-97-1 was not exempt under CEQA Guidelines section 15378 as a ballot measure because, before placing it on the ballot, the city council itself had approved Ordinance No. 1-97-1. The court reasoned that Guidelines section 15378 was a codification of Stein v. City of Santa Monica (1980) 110 Cal.App.3d 458 [ 168 Cal.Rptr. 39 ] (Stein), and was not intended to exempt situations that are distinguishable from Stein. Stein held only that placing a rent control charter amendment on

The Court of Appeal held that when the city abandoned its existing procedures in response to the opposition of the owners of the 29 properties to paying for EIR’s and turned instead to use of an initiative measure to accomplish delisting, it effectively exercised its discretion to approve the project. The delisting was a discretionary project subject to CEQA because the city could have exercised its discretion to follow a procedure in which delisting would have been allowed or denied on the basis of an EIR, but chose not to. (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259 , 272 [ 235 Cal.Rptr. 788 ].) Having reached that conclusion, the Court of Appeal determined, as a matter of first impression, that the appropriate remedy for the CEQA violation was to set aside both the resolution placing Ordinance No. 1-97-1 on the ballot and the election because failure to comply with CEQA made the election fundamentally unfair and affected the result.

Ill

Discussion

The City of Sierra Madre and its city council dispute the conclusion of the Court of Appeal that the council’s decision to submit a ballot measure to delist the 29 properties was a project subject to CEQA, relying on CEQA Guideline section 15378, subdivision (b)(3), which exempts “[t]he submittal of proposals to a vote of the people” and an argument that the electorate is not a public agency subject to CEQA. They also contend that postelection action seeking to set aside the ordinance is not one authorized by Elections Code section 16100 and is not otherwise permitted since the constitutionality of the ordinance is not challenged.

A. CEQA Compliance.

1. Overview of CEQA.

An overview of the purpose and structure of CEQA is necessary to an analysis of the applicability of the EIR requirement of that law to the actions of the Sierra Madre City Council.

Guidelines section 15378, subdivision (b)(3) (hereafter Guidelines section 15378(b)(3)) provides, inter alia: “Project does not include: HD ... HQ (3) 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 )[.]”

In Stein, supra, 110 Cal.App.3d 458 , the city placed an initiative charter amendment on the ballot without complying with CEQA. The Court of Appeal affirmed the denial of a petition for writ of mandate by which the petitioners sought to block implementation and enforcement of .the amendment. The only issue was whether CEQA applied to an initiative charter amendment placed on the ballot in response to a petition signed by the requisite number of registered voters. Noting that California Constitution, article XI, section 3 and Government Code section 34450 required that such measures be submitted to the voters, the Court of Appeal held that this procedure for amending the city charter involved no discretionary activity by the city. Moreover, as the city acted only as the agent of the electorate, the proposal was not a project of a public agency. It was therefore a nondiscretionary activity not contemplated by CEQA. (Stein, supra, 110 Cal.App.3d at pp. 460-461.)

The Court of Appeal here distinguished Stein on the basis that Ordinance No. 1-97-1 was not an initiative sponsored by members of the electorate that the city council was required to place on the ballot. It then concluded that Guidelines section 15378(b)(3) did not excuse the failure to comply with CEQA because the evidence in the record was sufficient to establish that the city council placed Ordinance No. 1-97-1 on the ballot only after it had decided to delist the affected properties. That decision and the decision to place the measure on the ballot were discretionary, not ministerial. Therefore, placing the council-generated initiative measure on the ballot was not the type of ministerial act contemplated by the guideline.

Amicus curiae State of California agrees that Guidelines section 15378(b)(3) is not intended to exempt all ballot measures from CEQA. In support of that view, the Attorney General relies on that part of the Summary of and Response to Comments document from the files of the California Resources Agency, prepared in conjunction with its 1982 rulemaking, of which we have taken judicial notice. (See fn. 15, ante.) This portion of the Summary of and Response to Comments addresses a proposal by a law firm to amend what was then Guidelines section 15378, subdivision (b)(4) (now § 15378(b)(3)) to cover any activity directed or authorized by a vote of the people. The firm suggested, e.g., that if by initiative the voters directed the city council to take all steps necessary to construct a wastewater treatment plant, CEQA should not apply to that project.

The comment on that proposal explained why the agency declined to expand the existing exemption. The first consideration was that when a citizen-sponsored initiative was placed on the ballot the city’s decision to do so was purely ministerial. A second consideration was the inability to identify a lead agency. The groups sponsoring the initiative should not be burdened with the cost of an EIR. Third, CEQA should not prevent the people from voting on an issue.

The comment then explained the existing section: “Although we wished to exempt from CEQA the step of submitting an issue to the vote of the people, we did not see this provision as a complete exemption from CEQA for any project related to the vote of the people. We believed that if a public agency was required to take one or more discretionary actions concerning a project that was subject to the vote, then the public agency should comply with CEQA before taking its discretionary action.”

A subsequent paragraph suggests, however, that the comment that the agency did not see the section “as a complete exemption from CEQA for any project related to the vote of the people” referred to actions subsequent to the vote. In the specific instance suggested by the law firm, the city would have discretionary power over the manner in which the project was carried out.

The addition of the citation of Stein to Guidelines section 15378(b)(3) is more indicative of the agency’s intent with respect to initiative ballot measures, suggesting the agency intended that the exemption apply only in the Stein situation, i.e., when placing an initiative measure on the ballot was a ministerial act compelled by law.

We presume that the California Resources Agency intended that the Guidelines section 15378(b)(3) conform to section 21080, subdivision (b)(1), which expressly excepts “[m]inisterial projects proposed to be carried out or approved by public agencies,” and, as Stein held, placing a voter-sponsored measure on the ballot is a ministerial act. Moreover, imposing CEQA requirements on such initiatives might well be an impermissible burden on the electors’ constitutional power to legislate by initiative. (Cal. Const., art. II, §§ 8, 11.) We so held in the context of initiatives directed to the amendment of a general plan, the amendment of zoning ordinances, and the preservation of agricultural land, which were challenged for failure to comply with procedural prerequisites applicable to legislative bodies. (See DeVita v. County of Napa (1995) 9 Cal.4th 763 , 785-786 [ 38 Cal.Rptr.2d 699 , 889 P.2d 1019 ], and cases cited.) We also noted in DeVita that Elections Code sections 9111 and 9112 permit, but do not require, a city or county to conduct an environmental impact study in conjunction with the placement of a voter-generated initiative on the ballot as long as that review does not interfere with prompt placement of the initiative on the ballot. (DeVita, supra, at p. 795.) There is therefore a clear distinction between voter-sponsored and city-council-generated initiatives.

We also presume, since an administrative regulation may not exceed the scope of authority granted by or be inconsistent with the statute pursuant to which it is promulgated (Gov. Code, §§ 11342.1, 11342.2; Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310 , 321 [ 87 Cal.Rptr.2d 423 , 981 P.2d 52 ]), that the California Resources Agency did not intend to exempt from CEQA any project that might cause a significant adverse impact on the environment unless exemption is permitted by CEQA or mandated by other controlling law. The city argues that the court should defer to the expertise of the administrative agency in its construction of the statute (see Dyna-Med v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1388-1389 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ]), but offers no basis for its assumption that the Resources Agency intended to exempt initiatives generated by a public agency from CEQA. The citation to Stein suggests that it did not.

Amici curiae City and County of San Francisco and others argue that requiring CEQA compliance for city-council-generated initiatives will handicap a city in responding to a voter-sponsored land use initiative by offering its own alternative because the process of CEQA compliance cannot be completed before the voter-sponsored initiative must be placed on the ballot. It is not within the province of the court to create exceptions to the CEQA mandate that discretionary projects that may have a substantial impact on the environment be subjected to CEQA review, however. And, as noted above, if a city or county believes the voter-sponsored initiative is ill-advised because it will have an adverse impact on the environment, it may refer the matter for an abbreviated environmental review pursuant to Elections Code sections 9111 and 9112. That review may then be made available to the voters. Contrary to the assertion of the City and County of San Francisco, mandatory CEQA review for city- or county-generated initiatives that may affect the environment need not silence the voices of cities and counties on controversial issues.

We conclude, therefore, that initiative measures generated and placed on the ballot by a public agency are not exempt from CEQA. Before placing any such measure that may lead to voter approval of a project on the ballot, the agency must comply with CEQA. If compliance leads to the preparation and consideration of an EIR, when that process is final the information contained in the EIR must be made available to the electorate for its consideration prior to the election.

B. Elections Code Issue.

The City of Sierra Madre also contends that, because this challenge to the adoption of Ordinance No. 1-97-1 does not allege that the measure is unconstitutional, a postelection challenge is not permitted by Elections Code

“(b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office.

“(c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000).

“(d) That illegal votes were cast.

“(e) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.

' “(f) That there was an error in the vote-counting programs or summation of ballot counts.”

This provision is accompanied by others, which specify the procedure to be followed in an election contest, including the filing, by an elector who contests the result, of a written statement which sets forth “specifically” the “particular grounds of contest and the section of [the] code under which the statement is filed.” (Elec. Code, § 16400.) The requirement that the person contesting an election specify the section of the Elections Code under which the contest statement is filed also suggests that the grounds for contest specified in that code are exclusive.

The Court of Appeal assumed that the grounds for an election contest set out in former section 20021 (now section 16100) of the Elections Code were exclusive in Long v. Hultberg (1972) 27 Cal.App.3d 606 [ 103 Cal.Rptr. 19 ]. There a preelection attempt was made to keep a recall petition off the ballot on the ground that the petitions were insufficient. Before the Court of Appeal could decide an appeal from the trial court’s order denying the petition for writ of mandate, the election was held. The Court of Appeal dismissed the appeal as moot, noting as it did so that the petition’s insufficiency was not grounds for an election contest under former section 20021 of the Elections Code (now section 16100). More recently, in Horwath v. City of East Palo Alto, supra, 212 Cal.App.3d 766 , the court reached the same conclusion, holding that the requirement that there be an impartial analysis of a ballot measure applied only to preelection activities. A failure of the city attorney to comply with the requirement was not a basis for a postelection contest in which the petitioners contended that the process of enacting a ballot measure was so “infected by official misinformation” that the legislation should be invalidated. The Court of Appeal explained: “The

In Williams v. McClellan (1953) 119 Cal.App.2d 138 [ 259 P.2d 12 ], one of the decisions on which the Horwath court relied, the court had held that a complaint that did not allege any of the enumerated bases for an election contest did not state a cause of action. “If we assume [the] plaintiffs are attempting to contest the election . . . they have failed to set forth therein any of the causes for such a contest as provided in [former] section 8511 of the Elections Code. . . . KO . . . [ID The prayer of plaintiffs’ complaint is for injunctive relief to restrain the defendants from performing further administrative or ministerial acts by virtue of the incorporation election. The complaint does not state facts sufficient to constitute a cause of action . . . .” (Williams, supra, 119 Cal.App.2d at pp. 143-144.) This court reached the same conclusion under an earlier elections law. “The proceeding may be instituted by any elector. The only matters of inquiry for the court are those prescribed in subdivisions 1, 2, 3, and 4 of [former] section 1111 of the Code of Civil Procedure . . . .” (Maddux v. Walthall (1903) 141 Cal. 412 , 415 [ 74 P. 1026 ].) Plaintiffs have not offered any basis for a conclusion that the Legislature intended to change that limitation on election contests and the court’s authority to set aside an election when the Elections Code was enacted in 1939 or in any subsequent amendment of that code. Section 2 of the Elections Code now states, as did its predecessor, that insofar as the provisions of the code are substantially the same as their preexisting counterparts they “shall be construed as restatements and continuations, and not as new enactments.”

We agree therefore that this action is not a permissible election challenge.

2. Validity of Ordinance No. 1-97-1.

Although this action was not properly brought as an election contest, the use of a petition for writ of mandate is a proper procedure by which to

Judicial review of CEQA-related actions of public agencies is authorized by Public Resources Code sections 21167, 21168, and 21168.5. Section 21167 refers to “[a]ny action or proceeding to attack, review, set aside, void, or annul the [specified] acts or decisions of a public agency on the grounds of noncompliance with this division.” Section 21168 also refers to “[a]ny action or proceeding” as does section 21168.5. Neither these sections nor any of the related provisions governing judicial actions in CEQA expressly authorize review by petition for writ of mandate.

However, Public Resources Code section 21168.9 authorizes issuance of mandamus to void actions taken without compliance with CEQA, by providing that the order be made “by the issuance of a peremptory writ of mandate.” Public Resources Code section 21168.6 also provides that mandate issue only from this court in actions under Public Resources Code sections 21168 and 21168.5 against the Public Utilities Commission. It is apparent, therefore, that the Legislature contemplates and has implicitly authorized use of a petition for writ of mandate as a means by which to review and annul public agency actions approving projects when the actions have been taken without compliance with CEQA. This is consistent with the traditional use of mandamus to correct an abuse of discretion by a board or agency and implements section 21005, which provides that “noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5.

Public Resources Code section 21168.5 was first construed as authorizing use of a petition for writ of mandamus to invalidate a local ordinance adopted without compliance with CEQA shortly after CEQA was adopted. In No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68 [ 118 Cal.Rptr. 34 , 529 P.2d 66 ], a petition for writ of mandamus was used to challenge the adoption by a city council of three ordinances. We held there that judicial review of the city’s decision to adopt the ordinances without CEQA compliance was governed by section 21168.5 and that, because the city had not made the required CEQA determinations before the ordinances were adopted, the judgment of the superior court denying the petition which sought to invalidate the ordinances should be reversed.

We again recognized the propriety of this use of mandamus recently in Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th 559 , 568,

That plaintiffs here sought to set aside the election is not relevant. In assessing the adequacy of a complaint to state a cause of action, it does not matter that the complaint seeks a type of relief to which the plaintiff is not entitled. (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56 , 66 [ 42 Cal.Rptr. 473 ].) The same is true with respect to a petition for writ of mandamus. (Code Civ. Proc., § 1089.) Where a petitioner is not entitled to the relief sought, the court may grant appropriate relief. (See Brown v. Superior Court (1949) 34 Cal.2d 559 , 566 [ 212 P.2d 878 ]; see also 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 206, p. 997, and cases cited.)

Therefore, since Public Resources Code section 21168.5 authorizes use of a petition for writ of mandamus to set aside an action of a public agency for noncompliance with the provisions of CEQA, this petition is a procedurally proper means of challenging the validity of Ordinance No. 1-97-1. Since the petition adequately alleges noncompliance, failure to comply is not disputed by respondents, and the record confirms noncompliance, the appropriate relief is invalidation of the ordinance.

Disposition

The judgment of the Court of Appeal directing the trial court to grant the petition for writ of mandate on the CEQA violation claim is affirmed.

George, C. J., Mosk, J., Kennard, J., Werdegar, J., Chin, J., and Brown, J., concurred.

On May 2, 2001, the opinion was modified to read as printed above.