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Court Rejects CEQA Challenge to Transportation Sales Tax Renewal

By: Stanley S. Taylor, Stephen N. Roberts
01/30/06

The California Court of Appeal has rejected a challenge by the Sierra Club to the approval of an expenditure plan and sales tax ordinance extending San Bernardino’s transportation sales tax.  (San Bernardino Associated Governments et al., Petitioners v. The Superior Court of San Bernardino County, Respondent; Sierra Club et al., Real Parties in Interest,  (Jan. 24, 2006, EO37468) ___ Cal.App.4th ___ <www.courtinfo.ca.gov/opinions>.)  The decision rejected the Sierra Club’s attempt to compel the San Bernardino County Board of Supervisors to conduct an environmental review before placing the sales tax measure on the November 2004 ballot, or, alternatively, to prevent the implementation of the sales tax measure if passed by the voters.  The sales tax was approved by the voters of San Bernardino County by a more than 80% majority vote.

The decision resolves one open question especially important to transportation and other public agencies related to requirements under the California Environmental Quality Act ("CEQA") (Pub. Resources Code, §§ 21000-21177), but declines to resolve another.  The appellate court concluded that the Board of Supervisors' action placing the sales tax on the ballot was a ministerial action and thus not subject to CEQA review, because the Board had no discretion in the matter.  The Court declined to decide the question of whether the prior action of the San Bernardino Associated Governments ("SANBAG") approving the sales tax expenditure plan was itself subject to CEQA review, but held that, whether or not it was, the Sierra Club had failed to challenge SANBAG’s action within the short statute of limitations for such challenges under the CEQA law. 

Nossaman filed an amicus brief in the matter on behalf of the Self Help Counties Coalition, a coalition of California's 19 local transportation sales tax agencies; in support of SANBAG’s position on the matter, the brief urged the court to consider the matter up on an extraordinary writ.  The decision validated our client's position contesting the need for CEQA review of a board of supervisors' action placing a measure on the ballot, but unfortunately leaves open the question of whether a transportation sales tax expenditure plan requires full CEQA review.

BACKGROUND

SANBAG is San Bernardino’s designated local transportation authority, with the power to impose a sales tax to fund local and regional transportation needs (Pub. Util. Code, § 180201 et seq., added by Stats. 1987, ch. 786, § 1.).  In order to impose the tax, SANBAG is required to adopt a transportation expenditure plan identifying projects and programs to be funded with the tax and other transportation revenues.  The plan and sales tax ordinance, following approval by the San Bernardino cities and the county, must be placed before the voters by call of an election by the county Board of Supervisors. 

In May 2004 SANBAG circulated an expenditure plan to the cities and the county for their review and approval.  Upon obtaining the necessary approvals, the SANBAG Board adopted the expenditure plan and an ordinance extending the current sales tax for a 30-year period.  SANBAG also posted a Notice of Exemption, stating that its adoption of the plan was not a "project" under CEQA, or, alternatively, if it was a project, it nevertheless was exempt from full CEQA review.  Subsequently, the County Board of Supervisors passed a resolution submitting the sales tax ordinance to the voters and placing it on the November 2004 ballot.  The Board of Supervisors posted a Notice of Exemption claiming an exemption from full CEQA review under provisions in the CEQA Guidelines exempting certain matters submitted to the voters from CEQA review (Cal. Code Regs., tit. 14, § 15378, subd. (b)(3).), or alternatively, if not exempt on those grounds, claiming that the expenditure plan and sales tax ordinance were a regional transportation improvement plan, the development of which was exempt from CEQA review.  (Pub. Resources Code, § 21080, subd. (b)(3).)

More than 35 days after SANBAG’s posting of its Notice of Exemption, but less than 35 days after the County’s, the Sierra Club filed its petition for writ of mandate in the trial court, alleging that SANBAG and the County were required to conduct a full environmental review before placing the sales tax on the ballot.  SANBAG and the County demurred, citing the 35-day statute of limitations under CEQA as barring any challenge to the SANBAG Board’s posting of the Notice, and arguing that the Board of Supervisors' action was ministerial and thus not subject to CEQA review.  The Superior Court overruled the demurrer, but ultimately the Court of Appeal decided that it should have been sustained.

DISCUSSION

1.                   The Court Did Not Resolve Whether SANBAG’s Action Approving the Expenditure Plan Was Subject to CEQA.

There has been significant debate among members of the transportation community as to whether a transportation expenditure plan requires a full-blown CEQA review.  The view has been expressed that the CEQA Guidelines exemption for action placing a matter before the voters provides a complete exemption from CEQA review.  Until recently this position was generally viewed as correct; however in 2001 the California Supreme Court issued its decision in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 (hereafter Sierra Madre), which clearly distinguished voter-initiated measures that are not subject to CEQA review, from agency-initiated measures that are.  Following the Sierra Madre decision, some expressed the view that the exemption in the Guidelines might not apply, and therefore that caution dictated conducting a full environmental review under CEQA before a sales tax extension was submitted to the voters. 

Unfortunately, the Court of Appeal declined to resolve whether the SANBAG Board’s action approving the expenditure plan was subject to CEQA review.  However, by posting its Notice of Exemption, SANBAG started the clock on a very short 35-day statute of limitations, which the Sierra Club missed.

2.                   The Board of Supervisors' Action Placing the Sales Tax Measure on the Ballot Was Ministerial, and Not Subject to CEQA.

The court made clear that any substantive action constituting project approval had occurred at the SANBAG Board, and that the Board of Supervisors' action of placing the sales tax measure on the November 2004 ballot was a merely ministerial act.  Citing the Guidelines, the court concluded that the Board of Supervisors' action involved little or no personal judgment and was not discretionary.  The court also noted that the county did not generate the measure, and concluded that the Sierra Madre decision required CEQA compliance only when the agency both proposed and placed the measure on the ballot.  The fact that the local transportation authority law referred to SANBAG’s "request" to put the measure on the ballot was not persuasive that the County had any discretion, under the facts and legislative history.

3.                   Comment.

The court’s failure to resolve the question of whether SANBAG’s action adopting the transportation expenditure plan was subject to full CEQA review is a disappointment.  We note that in the tentative decision issued by the court prior to oral argument, the court concluded that adoption of the expenditure plan required CEQA compliance.  The final decision ducks the issue.  The court makes clear, however, that "it was SANBAG, as the body substantively responsible for the Measure that would have been required to conduct an environmental review."  (SANBAG v. Superior Court, supra, ___ Cal.App.4th ___ [p. 21].) 


For more information, please contact Stan Taylor at (415) 438-7224 / staylor@nossaman.com or Steve Roberts at (415) 438-7213 / sroberts@nossaman.com.

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