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Wing Y. Chung v. City of Monterey Park

October 23, 2012

WING Y. CHUNG, PLAINTIFF AND APPELLANT,
v.
CITY OF MONTEREY PARK, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. (Los Angeles County Super. Ct. No. BS129746)

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Plaintiff and appellant Wing Y. Chung (Chung) appeals a judgment denying his petition for writ of writ of mandate and declaratory relief. Chung sought to invalidate Measure BB, approved by the voters of defendant and respondent City of Monterey Park (the City). Measure BB established a competitive bidding for future trash service contracts, to be used after the existing trash service contract, currently held by Athens Services (Athens), expires in 2017.

The essential issue presented is whether the Monterey Park City Council's (City Council) decision to place Measure BB on the ballot required prior environmental review pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

The trial court properly determined that Measure BB was not a "project" within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. City voters approve Measure BB, placed on the ballot by the City Council, adopting competitive bidding for trash hauling services.

On November 3, 2010, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when Athens's current contract expired in 2017, and thereafter require the City competitively bid for trash service every five years.

Two weeks later, on November 17, 2010, the City Council met to address the issue further. Athens was represented at the meeting by its counsel. In opposing the proposed ballot measure, Athens asserted the measure was a "project" within the meaning of CEQA so as to require environmental review, and that the measure would improperly and imprudently "bind a future council" in 2017, when the current contract would expire.

The city attorney, in turn, opined this was not a project for purposes of CEQA. Further, the ballot measure was clear with respect to compliance with future environmental laws; the successful bidder would be required to comply with applicable legal requirements. As for whether Measure BB could be amended at a later date, the city attorney stated: "If this is placed on the ballot, and it's approved by the voters, a future Council cannot change this language in this ordinance. It could only be approved by, or changed through a subsequent vote of the people."

At the conclusion of the public hearing, the City Council unanimously voted to place the measure on the March 8, 2011 municipal ballot.

After the City Council voted to submit Measure BB to the voters, Athens submitted a letter to the City reiterating its arguments that the proposal to require competitive bidding was in violation of CEQA. Measure BB, among other things, would require the City Council to award the residential solid waste franchise to a single franchisee, but the City Council, "may, at its discretion, award the commercial solid waste Franchise to up to three franchisees." (Italics added.) Therefore, Measure BB raised concerns about air quality, noise pollution and road damage that would likely result from an increase in the size of the solid waste contractor fleet serving the City.

On March 8, 2011, City voters approved Measure BB, with over 71 percent voting in favor of establishing a competitive bidding process.*fn1

2. Proceedings.

a. Petition for writ of mandate and complaint for declaratory relief.

Chung is a voter and resident of the City, and was a signatory to the ballot arguments against Measure BB. Prior to the municipal election, on December 21, 2010, Chung filed a petition for writ of mandate (Code Civ. Proc., §§ 1085, 1094.5) and complaint for declaratory relief.

Chung alleged Measure BB is a "project" subject to CEQA, and the City violated CEQA by failing to make any decision as to whether Measure BB would have a significant impact upon the environment, failing to consider any alternatives or mitigating measures, and failing to conduct the requisite informed decision making under CEQA.

Chung further pled that by placing Measure BB on the ballot as an "Initiative Measure," when in fact it was nothing more than a municipal ordinance, the current City Council was purporting to strip a future city council of the ability to amend Measure BB. "By placing Measure BB on the ballot as an 'initiative,' the current Monterey Park City Council is attempting to characterize Measure BB as a true initiative measure in the hope that future city councils will be unable to change or amend the terms of Measure BB without a further vote of the people, thereby attempting to do indirectly what they cannot do directly."

Chung sought the issuance of a writ of mandate to remove Measure BB from the ballot due to the City's noncompliance with CEQA.

Chung also requested declaratory relief in the event Measure BB remained on the ballot and was approved by the voters, seeking to have Measure BB declared void as an unconstitutional ordinance. Chung asserted that although the City had deemed Measure BB a voter "initiative," Measure BB was not submitted by way of initiative petitions as required by Elections Code section 9201 et seq. and therefore was not a valid initiative. Therefore, Measure BB ...


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