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Nielsen Merksamer Prevails in Lawsuit Declaring Illegal Land Use Referendum Ineligible for the Ballot
On December 4, 2015, Superior Court Judge Leslie Nichols ruled that a referendum seeking to block land use approvals for mining operations in Amador County was invalid and ineligible for the ballot. The Judge concluded that the referendum petition was beyond the power of the people to propose because it sought to refer a non-legislative (i.e., administrative) act.
Earlier this year, the Amador County Board of Supervisors approved two projects on separate parcels of land located about a mile from each other —a hard rock quarry, and an asphalt plant, concrete plant, and rail loadout. Both the quarry and the processing plant needed various County approvals in order to conduct the proposed activities. The processing plant needed a general plan amendment, a zoning ordinance amendment, and several permits. The quarry needed only approval of a conditional use permit and a reclamation plan. The reclamation plan is required by the California Surface Mining and Reclamation Act (“SMARA”), and its purpose is to ensure that the land affected by the proposed mining operation is “reclaimed” and rehabilitated to make it suitable for other uses once mining operations have ceased.
Opponents of the projects, seeking to stop both developments, circulated a single referendum petition challenging three actions of the Board of Supervisors—the general plan amendment and zoning ordinance for the processing plant, and the reclamation plan for the quarry. Although the petition contained a sufficient number of signatures to qualify for the ballot, the County had reservations about whether the reclamation plan was subject to referendum eligible for placement on the ballot.
Nielsen Merksamer filed a declaratory relief action on the County’s behalf, alleging its belief that the reclamation plan was administrative in nature and that the inclusion of this administrative act invalidated the referendum.
The court agreed and concluded that the entire referendum was ineligible for the ballot. Significantly, the court also rejected the opponents’ claims that the reclamation plan should be severed from the remainder of the referendum prior to the election.