4th District court says no to development by ballot initiative

Local initiative agreements may not be used to adopt private development projects, a state appellate court ruled, threatening the development of what was expected to be the world's largest logistic center in Riverside County.

In a unanimous ruling Thursday, the 4th District Court of Appeal in San Diego put a halt to a tactic plaintiffs say could have been used across the state to evade environmental and other regulations.

"It's very significant, in that a clever gimmick has been closed off by the court," said Adrian Martinez from the nonprofit environmental law firm Earthjustice and co-lead counsel for one of the plaintiffs, Center for Community Action and Environmental Justice.

"If this had been allowed to proceed, I think you would have seen developers using this strategy where they self-negotiate a development agreement, hire signature gatherers to get the number of signatures needed and then get the city council, which they handsomely donated to their campaign, to approve," Martinez added.

Development group Highland Fairview proposed the construction of The World Logistics Center. The Moreno Valley City Council support the project because of the thousands of jobs they say it would bring to the area, according to a stetement provided by City Attorney Martin Koczanowicz.

The city council adopted ordinances and resolutions approving the project but were quickly met with lawsuits for failure to comply with the California Environmental Quality Act.

Environmental conservation groups said it would decreased air quality and increased traffic.

To bypass those challenges, the Moreno Valley Jobs Coalition filed an initiative petition funded and supported by Highland Fairview that would approve the WLC Development Agreement. The initiative received sufficient signatures. Instead of putting the intiative to a vote, the city council adopted it outright. Plaintiffs challenged the city council's adoption of the initiative but were rebuffed by Riverside County Superior Court Judge Sharon J. Waters.

The 4th District court reversed that decision, concluding the Legislature is intended to exclusively delegate approval of development agreements and to make such approval subject to referendum, but not to initiative. Social Environmental Justice Alliance, Petitioner and Appellant v. City of Moreno Valley et al., D073451 (Cal. App. 4th Dist. Aug. 23, 2018).

Justice Cynthia Aaron wrote the opinion. Justices Judith L. Haller and Richard D. Huffman concurred.

"The statute authorization specifically says that a development agreement is a legislative act subject to referendum, period," explained Rachel Hooper, attorney for the Sierra Club, one of several groups in an alliance that brought the suit. "The state Legislature specifically left out a reference to the initiative power and so that was very significant."

Koczanowicz, the Moreno Valley city attorney, said the court decision will not stop the development and then provided a statement in an email adding, "This decision does not impact the development of the WLC project, which is projected to bring 13,000 construction jobs and 20,000 permanent jobs to Moreno Valley and the region. The updated EIR is still available for public comment through September 7 and we look forward to continued progress on this project."

Hooper said that court decision has significant implications for land use law and said in a news release that, "Until yesterday, no court of appeal had addressed the issue of whether project proponents may use the initiative power to adopt development agreements. The Fourth District's well-reasoned decision provides a clear answer to that question: No, they may not."