Richard W. Johnson,
P.O. Box 533, Talmage, CA 95481
468-1009
in pro per
SUPERIOR
COURT OF
MENDOCINO COUNTY, UKIAH
CALIFORNIA
100 N. State St. Ukiah
• STATE OF CALIFORNIA
RICHARD W. JOHNSON,
PETITION FOR
Plaintiff
EX PARTE
NOTICE OF
v.
MOTION AND
MOTION FOR
SUPERVISORS OF MENDOCINO
TEMPORARY
COUNTY: Respondents
RESTRAINING
ORDER AND
MENDOCINO COUNTY TOMORROW,
PRELIMINARY
an unincorporated association
NINJUNCTION
Real Party in Interest
Hearing: June 18, 2009
Time: 1:30pm
Department E |
 |
|
|
Notice of Motion and Motion
TO CLERK OF THE COURT AND RESPONDENTS
Mendocino County Supervisors and REAL PARTY IN INTEREST Mendocino
County Tomorrow.
PLEASE TAKE NOTICE that at 1:30pm on June 18 or as
soon as practical thereafter, Petitioner Richard Johnson will
and
hereby does move the Court to issue its Temporary Restraining Order and
pursuant to Code of Civil Procedure §526(a), the US Constitution,
the California Constitution and other authorities prohibiting
Respondents Mendocino County Supervisors from either adopting an
ordinance or placing a voter initiative on any election ballot to enact
a General Plan and Zoning Code Amendment and Mixed Use Specific Plan
for the Former Site of the Masonite Facility.
Pertinent Facts prior to this Action:
1) On December 22, 2008, Mendocino County
Tomorrow Candidate PAC filed a statement of organization with the
Mendocino County Clerk. The physical address was listed at 1003 N. Pine
Street in Ukiah, the residence of David C. Clark, but the mailing
address was listed as C/O 2350 Kerner Boulevard, Suite 250, San Rafael,
CA 94901, the offices of Nielsen Merksamer, attorneys for Developers'
Diversified Realty. Officers were listed as Ken Marshall of Ukiah,
Christopher Skinnell of the above address, as well as Danny Rosales,
Katie Huerta and Carol Myer.
2) On March 18, 2009, Developers Diversified Realty
announced in the press that it was considering launching a ballot
initiative to rezone its property at the former Masonite site north of
Ukiah to a mixed use specific plan to suit its development plans.
3) On March 20, Mendocino County Tomorrow filed a
Notice of Intent to Circulate such a petition with Susan Ranochak as
County Clerk, Assessor, Recorder and Elections Officer The proponents
were David C. Clark of Ukiah, Daniel J. Rosales of Willits, Katie
Battaglia-Huerta of Redwood Valley, and Carol Myer of Ukiah.
The Initiative would enact a General Plan Amendment
(Exhibit A of the Initiative) creating a novel land use designation in
Mendocino County called the Mixed Use Specific Plan and applying it
exclusively to 76 acres which include assessor's parcel numbers
170-170-04, 05 and 12; 170-190-02, 03, 04, 05, 06. 09, 14 and 15 and
generally bounded by Masonite Road on the north, State Highway 101 on
the South, the Northwest Pacific Railroad tracks on the east, and North
State Street on the Westm ("the Site").
It would also amend Zoning maps to change the
designation from Industrial to Mixed Use Specific Plan.
It would also apply this land use designation and
zoning exclusively to the Mendocino Crossings Mixed Use Masonite
Specific Plan, Exhibit B of the Initiative.
4) On March 27, a new committee statement was filed
in the County Clerk's office on behalf of "Citizens to Bring Jobs, Tax
Dollars and Local Shopping to Mendocino County - a coalition being led
by Mendocino County Tomorrow with major funding by DDR db MENDOCINO
LP."
The street address of this committee was listed as
456 B. North State Street in Ukiah. Officers were listed as Stan
Hoffman of 455 East 500 South, Suite 300 Salt Lake City Utah,
84111, a DDR vice president; Jason D. Kaune of the above San Rafael
address; as well as Joan Allgood, of 330 Enterprise Parkway, Beachwood,
Ohio, 44122, the home address of Developers' Diversified Realty.
4) Jeanine Nadel as Mendocino County Counsel
prepared a Ballot Title and Summary of the proposed initiative and
presented it to the County Clerk Ranochak on April 1, 2009. The Title
is; An Initiative to Enact a General Plan and Zoning Code Amendment,
and Mixed Use Specific Plan for the Former Site of the Masonite
Facility, ("the Initiative").
5) The Initiative's Ballot Title and Summary was
published along with the Notice of Intent to Circulate on April 4, and
circulation of the petitions began.
6) Proponents Mendocino Count Tomorrow filed
Initiative petitions containing some 10,700 signatures on April 30 with
the County Clerk.
7) The Mendocino County Board of Supervisors ("the
Board") after several continuations ordered a study of the initiative
pursuant to Elections Code 9111 on May 18, 2009 to be presented
to the Board on June 16.
8) On May 18, Frank McMichael, executive director of
the Mendocino County Local Agency Formation Commission provided a
verbal report, later published, to Mendocino County Supervisors on
potential impacts to local water, fire, sewer districts of any project
to be built under the exclusive zoning and Specific Plan proposed in
the Initiative.
9) On June 3, the Ukiah City Council passed a
resolution "strongly opposing" the DDR initiative for the probable
impacts that eventual buildout would have on city services, traffic,
water, tax revenues and economic conditions.
10) The Board accepted certification by County Clerk
of sufficiency of the Initiative petitions on June 9. On June 16, the
Section 9111 Study will be presented to the Board by County Executive
Officer, along with a request for consolidation of the election for the
Initiative on the November special election ballot. On June 23, 2009,
the Board is required by statute to either adopt the Initiative as a
county ordinance, or order it to be placed on the November 3, 2009
county special election ballot. (Elections Code §9116,(c)) Time is
therefore of the essence in this action.
Jurisdiction and
Standing:
Richard Johnson is a citizen, taxpayer and
resident of Mendocino County and thus has standing to bring suit under
CCP §526(a).
The Initiative would amend the Mendocino County
General Plan with a unique zoning designation, and its Specific Plan
would apply exclusively to the former Masonite factory site in the
Ukiah Valley.
The Notice of Intent to Circulate the Initiative was
signed by David C. Clark of Ukiah, Daniel J. Rosales of Willits, Katie
Huerta of Redwood Valley and Carol Elaine Myer of Ukiah, all Mendocino
County residents.
The Initiative petitions have been certified as
sufficient by the County Clerk and accepted by the Board of Supervisors
of Mendocino County. Thus, the matter is properly
before the Mendocino County Superior Court.
COMPLAINT
First Cause of Action: ELECTION
The Initiative pretends to either amend or
revise the California Constitution by
1. Externalizing service impact costs of any project
eventually built under its provisions, without lead agency review or
public opportunity to intervene under the California Environmental
Quality Act, a priori depriving neighboring businesses, service
district ratepayers and other landowners constitutional of due process
and equal protection.
2. Making a gift of public funds to the eventual
developer of the Site.
3. Exclusively granting the owner of the Site sole
power to make land use decisions thereon otherwise exercised by
constitutionally authorized government agencies.
Plaintiff Johnson has standing under California Code
of Civil Procedure 526(a) to challenge a by a decision of Respondent
Supervisors to place the Initiative on any ballot because it therefore
is unconstitutional and must not be submitted to voters and conducting
the election thereof would be a waste of public funds.
Second Cause of Action: ADOPTION BY
SUPERVISORS
Supervisors upon election swear to uphold the
California Constitution, and the constitutional power of local
government to regulate land use is a matter of statewide concern and
importance. Adoption of the Initiative by Mendocino County Supervisors
would undermine that power and would:
1. Externalize service impact costs of any project
eventually built under its provisions, without lead agency review or
public opportunity to comment or intervene under the California
Environmental Quality Act, a priori depriving neighboring businesses,
service district ratepayers and other landowners constitutional of due
process and equal protection.
2. Make a gift of public funds to the owner of the
Site.
3. Grant the owner of the Site sole power to make
land use decisions thereon otherwise exercised by constitutionally
authorized government agencies.
And therefore is unconstitutional and must not be
adopted.
Prayer
for Relief
Wherefore Plaintiff prays this court for
relief as follows:
A Temporary Restraining Order and Preliminary
Injunction prohibiting and enjoining Respondents Mendocino County
Supervisors from adopting or placing the Initiative to
enact a General Plan and Zoning Code Amendment and Mixed Use Specific
Plan for the Former Site of the Masonite Factory on any ballot.
Verification and Declaration of Plaintiff
I, Richard Johnson am the Plaintiff and Petitioner
in the above entitled proceeding and have personal knowledge of the
facts alleged in this petition except to those matters which are stated
on information and belief, and those I believe to be true.
I personally prepared this Final Amended
Complaint and know the contents thereof to be true. The same is
true of my own knowledge except as to those matters which are therein
stated on information and belief and as to those matters I believe them
to be true.
I declare under penalty of the laws of perjury
of California the foregoing is true and correct.
RICHARD JOHNSON, Plaintiff and
petitioner Date: ______________
Exhibits
A) The text of the Initiative with Exhibits A
and B as proposed to County Clerk in March, 2009 with official Ballot
Title and Summary
(Available online at www.co.mendocino.ca.us/
administration/MendocinoCountyTomorrow.htm)
B) May 18 LAFCO executive director's Service Impact
Report to Board of Supervisors regarding DDR Specific Plan.
(Available online at
www.mendocinocountry.com/votersunion/*PORTAL_votersunion.html)
C) City of Ukiah Resolution. (Available online at
www.mendocinocountry.com/votersunion/*PORTAL_votersunion.html)
0000000000000000000000000000
Richard W. Johnson,
P.O. Box 533
Talmage, CA 95481
468-1009
in pro per
SUPERIOR
COURT OF
MENDOCINO COUNTY, UKIAH
CALIFORNIA
100 N. State St. Ukiah STATE OF
CALIFORNIA
RICHARD W. JOHNSON
Plaintiff
Case #
v.
MENDOCINO COUNTY
POINTS AND
SUPERVISORS
AUTHORITIES
Respondents
FOR
TEMPORARY
RESTRAINING
MENDOCINO COUNTY
ORDER AND
TOMORROW, Real Parties
PRELIMINARY
in Interest
INJUNCTION
Hearing: June 18, 2009
Time:
1:30pm
Dept: E
Under California Code of Civil Procedure §526
et seq. the court may impose a Temporary Restraining Order and grant an
injunction prohibiting the Respondent Mendocino County supervisors from
ordering the election of the Initiative to enact a General Plan and
Zoning Code Amendment and Mixed Use Specific Plan for the Former Site
of the Masonite Facility.
Points
and Authorities:
1)
PLAINTIFF HAS STANDING: An action which meets the
requirements of Code Civ. Proc., § 526a (permitting taxpayer to
obtain judgment restraining and preventing illegal expenditure of
public funds), presents a true case or controversy. Arrieta v. Mahon
(1982) 31 Cal 3d 381, 182 Cal Rptr 770, 644 P2d 1249, 1982 Cal LEXIS
179. Blair v. Pitchess, 5 Cal. 3d 258, 269–70, 486 P.2d 1242,
1250, 96 Cal. Rptr. 42, 50 (1971). Los Altos Property Owners
Ass’n v. Hutcheon, 69 Cal. App. 3d 22, 29–30, 137 Cal. Rptr. 775, 779
(1977).
A governmental body, or any person or entity with
standing, may file a petition for writ of mandate, seeking a court
order removing the initiative measure from the ballot. (Farley v.
Healey [] [(1967)] 67 Cal.2d [325,] 327, 62 Cal.Rptr. 26, 431 P.2d 650.)
City and County of San Francisco et al.,
Plaintiffs & Respondents, v. Jay Patterson, Registrar of Voters
Defendant And Respondent; Richard Guichard, Real Party In Interest And
Appellant Court of Appeal of California, First Appellate
District, Division One 202 Cal. App. 3d 95; 248 Cal. Rptr. 290; 1988
Cal. App. LEXIS 557
Initiative and Referendum § II--Local
Elections--Initiative--Review of Measure Before Election. --While
it is more important to review challenges to initiative measures after
an election rather than to disrupt the electoral process by preventing
exercise of the people's right to vote, an exception to this judicial
restraint arises on a showing that the proposed initiative is beyond
the power of the voters to adopt or is not legislative in character
2) ELECTION OF
THE INITIATIVE WOULD BE A WASTE OF PUBLIC FUNDS. The
Initiative would be a waste of public funds because the
California Constitution Art. 2, §12 forbids submitting to voters
an initiative granting a power to a named private corporation.
California Constitution Article 2 Voting,
Initiative And Referendum, and Recall
SEC. 12. No amendment to the Constitution, and
no statute proposed to the electors by the Legislature or by
initiative, that names any individual to hold any office, or names or
identifies any private corporation to perform any function or to have
any power or duty, may be submitted to the electors or have any effect.
2A) THE GENERAL
PLAN AMENDMENT IN THE INITIATIVE CREATES AN EXCLUSIVE AND UNIQUE ZONING
DESIGNATION APPLICABLE ONLY TO THE OWNER OF THE FORMER MASONITE
SITE.
Exhibit A of the Initiative would create a novel
land use classification in Mendocino County: Mixed Use Specific Plan
(p. A-1-2 of Exhibit A of the Initiative) that is applied exclusively
to 76 acres of the former Masonite site ("the Site") currently owned by
DDR and includes parcel numbers shown on those pages currently zoned
industrial.
2B) The General Plan Amendment in the Initiative
would require Supervisors to amend the Ukiah Valley Area Plan and the
Mendocino County General Plan and zoning ordinances as follows:
"In order to ensure that the County's General Plan
remains an integrated,
internally consistent and compatible statement of policies for
the County as required by State law, and to ensure that the actions of
the voters in enacting this Initiative are given effect, any provisions
of the General Plan or Maps, Zoning Code or Zoning Maps, or other
ordinances or policies affected by this Initiative shall be amended as
soon as possible and in the manner and time required by state law to
ensure consistency with the provisions adopted by this Initiative."
2C) THE SPECIFIC
PLAN TRANSFERS POWER TO MAKE PLANNING DECISIONS OVER THE SITE FROM
PUBLIC BODIES TO THE DEVELOPER.
Zoning ordinances are meant to control development
by means of objective standards and requirements for mitigation of
negative impacts. The Initiative's General Plan Amendment and Specific
Plan removes virtually all restrictions on any project to be built
under them.
While the maximum number of residential dwelling
units in the General Plan Amendment in the Initiative is held not
exceed 150, and the maximum building area is not to exceed 800,000
square feet of the 1.3 million square foot area, it is implied that up
to 5 million square feet of paved surface area will be required to
access new parcels and structures, and no design review will be
required. (p. A-2).
Masonite Mixed Use Specific Plan contains
numerous disclaimers such as
"The actual development of the site is subject to
change based on market and regional demands."
For example, on page B-175 the map of open spaces is
disclaimed by a statement in a box on the lower edge which states:
"The location and types of land uses, roadways,
landscape and buildings illustrated above are conceptual and subject to
change."
And on B-213:
"The project phasing is anticipated to occur in four
phases, however the actual development of each phase and the order in
which it occurs will be dependent on market conditions."
In his Service Impact Report to Supervisors dated
May 18, 2009, (Plaintiff's Exhibit B), LAFCO executive director Frank
McMichael states:
"The County or the service districts will have
absolutely no ability to determine what will be constructed, the
appearance of the development, the amount of construction or the
location of any development and therefore will suffer the impacts as
the developer considers appropriate." (pp 20-21, ibid).
In the Land Use Plan chapter of the Specific Plan,
on page B-42 is found the following statement:
“2.2Land Use Summary: Three conceptual plans are
provided in this chapter to illustrate the uses that can be
accommodated by the Specific Plan. The exhibits shown are conceptual
and do not reflect what may actually be constructed on the site. The
actual development of the site is subject to change based on market and
regional demands.”
If voters approve this Initiative, a future
developer of the site could
"bypass all of the requirements of the water
assessment laws, assessments for understanding the impacts on fire and
sewer services, the environmental review process and other county
review processes that would be normal for a General Plan Amendment."
(p. 21 ibid).
3) ELECTION WOULD BE A WASTE OF PUBLIC
FUNDS BECAUSE THE INITIATIVE WOULD MAKE A GIFT OF PUBLIC FUNDS TO THE
DEVELOPER OF THIS SITE.
Article XVI, Section 6 California Constitution
prohibits gifts of public funds:
CALIFORNIA CONSTITUTION Article XVI, SEC. 6. The
Legislature shall have no power to give or to lend, or to authorize the
giving or lending, of the credit of the State, or of any county, city
and county, city, township or other political corporation or
subdivision of the State now existing, or that may be hereafter
established, in aid of or to any person, association, or corporation,
whether municipal or otherwise, or to pledge the credit thereof, in any
manner whatever, for the payment of the liabilities of any individual,
association, municipal or other corporation whatever; nor shall it have
power to make any gift or authorize the making of any gift, of any
public money or thing of value to any individual, municipal or other
corporation whatever;
3A) AN ELECTION IS
NOT A PROJECT UNDER CEQA: And thus not subject to review of
significant direct or reasonably foreseeable indirect impacts on the
environment and on service delivery by local governments and districts
such as water, sewer, traffic infrastructure, police and fire services.
CEQA Guidelines s 15378, subd. (b)(4).) and
Stein v. Cit of Santa Monica, [1980] 110 Cal.App.3d 458 [168 Cal.Rptr.
39].)"
"Project," under the Guidelines, does not include
"The submittal of proposals to a vote of the people of the state or of
a particular community."
3B) ANY PROJECT
CONSTRUCTED UNDER THE ZONING PERMITTED BY THE ORDINANCE ENACTED BY THE
INITIATIVE WOULD HAVE SIGNIFICANT IMPACTS ON AFFECTED LOCAL DISTRICTS
AND OTHER GOVERNMENT JURISDICTIONS.
On May 18, the Local Agency Formation Council
executive officer Frank McMichael presented his Service Impact Report
to the Board of Supervisors regarding DDR Specific Plan (Exhibit B) in
which he listed the following local agencies which in his estimation
would suffer significant service impacts: The Ukiah Valley Fire
Protection District; The Ukiah Valley Sanitation District; The Millview
County Water District;
Mr. McMichael warned the Board that because the
General Plan Amendment and Specific Plan was to be adopted by
initiative, they would not be reviewed in advance by any lead agency
under CEQA.
"Because of the bypassing of the review, in effect,
DDR gets a pass on paying for the impact costs of their development.
The impact costs will not disappear however, but will simply be
transferred to ratepayers of the District(s) Thus the District
ratepayers will be burdened with the impact costs." (pp. 10-12).
With regard to Water, Mr. McMichael pointed out that
Water Code Sections 10910-10925 and Government Code Section 66473.7
"require detailed information regarding water
availability to county decision makers prior to approval of any
development of 500 dwelling units or 500,000 square feet. These
assessments must be included in any environmental documentation, and
require affirmative written verification of sufficient water supply at
the tentative map stage of approval.
...."The above required information would normally
be provided under a County review process. This information would be
critical to understanding the impacts of this project on water
availability and impacts on existing service recipients as well as
impacts on other agencies.
As indicated, this assessment is normally done
through the CEQA process. This assessment would have provided
vital information to the public and affected agencies for understanding
the water impacts of this proposal. Now they will not know until the
impacts are felt." (ibid., pp.16- 17)
On June 3, 2009 the Ukiah City Council passed
Resolution 2009-24
"strongly opposing the Mendocino Crossings Masonite
Mixed Use Specific Plan based on the City Council's Conviction that the
Specific Plan will have Detrimental Effects on the City of Ukiah and
the Region.
Among the impacts listed are:
3) "The cumulative build-out of the greater Ukiah
Valley Area has already negatively impacted public safety services
within the City of Ukiah. The proposed project increases these negative
impacts on police and fire services...
and finds that:
1. The Mendocino Crossings Mixed Use Masonite
Specific Plan could have significant adverse impacts on the City of
Ukiah's budget, public safety services and infrastructure, traffic
safety and circulation..."
3. The Initiative process does not require an
Environmental Impact Report, and therefore the potentially significant
adverse impacts will not be studied, the public will not be informed,
and a thorough and complete list of mitigation measures will not be
prepared and required for the build-out of the 800,00 square foot
Mendocino Crossings Mixed Use Specific Plan area.
Associated Home Builders Of The Greater Eastbay, Inc., V. City Of
Livermore 1976 Supreme Court of California 18 Cal. 3d 582; 557 P.2d
473; 135 Cal. Rptr. 41; 1976 Cal. LEXIS 372; 92 A.L.R.3d 1038; 7 ELR
20155
A land use restriction withstands constitutional
attack if it is fairly debatable that the restriction in fact bears a
reasonable relation to the general welfare. For the guidance of trial
courts, if a restriction significantly affects residents of surrounding
communities, the constitutionality of the restriction must be measured
by its impact not only upon the welfare of the enacting community, but
upon the welfare of the surrounding region.
The zoning power is a police power of the
state and the local authority is acting only as a delegate of that
power and is restricted in the same manner as is the state. When
regulation does have a substantial external impact, the welfare of the
state's citizens beyond the borders of the particular municipality
cannot be disregarded and must be recognized and served
3C) THE AVOIDANCE
OF ENVIRONMENTAL MITIGATION COSTS AND SERVICE IMPACT COSTS ARE AN
EXCLUSIVE GIFT OF PUBLIC FUNDS TO THE DEVELOPER OF ANY PROJECT UNDER
THE GENERAL PLAN AMENDMENT AND SPECIFIC PLAN CONTAINED IN THE
INITIATIVE.
Article XVI, Section 6 California Constitution
provides in part:
"The Legislature shall have no power to give or to lend, or to
authorize the giving or lending, of the credit of the State, or of any
county, city and county, city, township or other political corporation
or subdivision of the State now existing, or that may be hereafter
established, in aid of or to any person, association, or corporation,
whether municipal or otherwise, or to pledge the credit thereof, in any
manner whatever, for the payment of the liabilities of any individual,
association, municipal or other corporation whatever; nor shall it have
power to make any gift or authorize the making of any gift, of any
public money or thing of value to any individual, municipal or other
corporation whatever; ..."
Whereas under CEQA, the developer would be required
to mitigate environmental and service impacts, and pay affected
agencies the cost of significant impacts that could not be mitigated,
by adopting or placing the Initiative's General Plan Amendment and
Mixed Use Masonite Specific Plan before voters, Respondent Mendocino
County Supervisors would allow voters to enable DDR to avoid such
costs, which would be substantial, and burden taxpayers and ratepayers
of the affected jurisdictions and districts with those avoided costs.
4) ELECTION OF THE INITIATIVE WOULD BE
A WASTE OF PUBLIC FUNDS BECAUSE IT WOULD DEPRIVE NEARBY BUSINESSES,
SERVICE DISTRICTS AND OTHER LANDOWNERS OF DUE PROCESS AND EQUAL
PROTECTION OF THE US CONSTITUTION, ARTICLE 14.
The Constitution equally protects all
individuals in the United States from damage to rights and property
without due process
Amendment XIV, Section 1. All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The McMichael report concludes on p. 21,
"If this development occurs, without an assured
source of water as required by SB 610 and SB 221, present day service
recipients in the Millview District could potentially see their water
availability reduced dramatically. This could mean that all of the
water service recipients within the territory of Millview CWD will have
to proceed as if there is a drought even in normal rainfall years. This
seems an unfair burden to place on those people. Proper review would
avoid such possibilities.
"County wide voters are being asked to vote on this
development however, the impact costs will not be shared county wide;
all of the impacts and the associated costs will be placed on the rate
payers and service recipients of the districts that will be providing
the services. This does not seem to be appropriate, especially given
that the developer will not share in the costs of those impacts. If
this Initiative passes, we will have the majority of the voters of the
County being allowed to vote to place costs and impacts on a minority
of people."
5) ADOPTION OF THE ORDINANCE PROPOSED
IN THE INITIATIVE EITHER BY MENDOCINO COUNTY VOTERS OR
SUPERVISORS WOULD BE AN UNAUTHORIZED REVISION OF THE CALIFORNIA
CONSTITUTION.
Adoption of the ordinance proposed in the Initiative
would exempt the owner of the Site from both Article 2, Section
12 and Article 16, Section 6 of the California Constitution.
The California Constitution provides that only the
state Legislature can propose revisions thereof. (California
Constitution Article 18, Amending and Revising the Constitution,
Section 1).
"A far-reaching change in our governmental
framework as to amount to a qualitative constitutional revision [is} an
undertaking beyond the reach of the initiative process." Raven v.
Deukmejian (1990) 52 Cal.3d 336 , 276 Cal.Rptr. 326; 801 P.2d 1077
Legislature v. Eu (1991) 54 Cal.3d 492 , 286
Cal.Rptr. 283; 816 P.2d 1309
A constitutional "revision" need not involve
widespread deletions, additions and amendments affecting a host of
constitutional provisions and resulting in a quantitative revision.
"Even a relatively simple enactment may accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a
revision also."
Amador Valley Joint Union High Sch. Dist. v. State
Bd. of Equalization (1978) 22 Cal.3d 208, 223, 149 Cal.Rptr. 239, 583
P.2d 1281
6) ADOPTION OF THE ORDINANCE PROPOSED
IN THE INITIATIVE EITHER BY MENDOCINO COUNTY VOTERS OR SUPERVISORS
WOULD BE AN UNAUTHORIZED AMENDMENT OF THE CALIFORNIA
CONSTITUTION.
The California Constitution provides that only
voters of the entire state or the state Legislature can propose
amendments thereof. (California Constitution Article 18, Amending and
Revising the Constitution, Sections 1& 3.).
An amendment is any change in the scope or effect of
an existing statute, whether by addition, omission, or substitution of
provisions which does not wholly terminate its existence, whether by an
act independent and original in form. A statute which adds to or takes
away from an existing statute is considered an amendment.
Knight v. Superior Court, 2005, 128 Cal.
App.4th, 14, 22. ; Mobilepark West Homeowners Assn. v. Escondido
Mobilepark West (1995) 35 Cal.App.4th 32, 40.
For all of the foregoing reasons, this court should
issue a temporary restraining order and preliminary injunction
enjoining Respondents Mendocino County Supervisors from adopting
or ordering the election of the Initiative.
//
__________________________
RICHARD W. JOHNSON
` Date: _________