The debate over the validity of the referendum filed against Jackson’s Final EIR entered round three at Monday’s Jackson City Council meeting. Andrew J. Morris, the city’s attorney, maintains that the certification of the final EIR is not subject to referendum because it is an adjudicatory act and only legislative acts are subject to referendum. Thomas Infusino, the attorney hired by the Foothill Conservancy, contends that the referendum is valid because the very act of certifying the EIR is a legislative one. Infusino, in a letter to the City Council, cites several court cases where the court had made distinctions between adjudicatory and legislative acts, and provides the details of two cases where the court determined that the action of certifying an EIR was “quasi-legislative” in character.  Infusino noted that one appellate court made the distinction by ruling that it “depended upon the nature of the underlying decision” and contends that the underlying decision in the City of Jackson’s case is to amend the General Plan, which is a legislative act.  City Attorney Morris argued that there “is no underlying action in certifying an EIR” and that the “preparation and certification of an EIR is not a legislative act (in itself).”

Although Friends of Jackson filed the referendum, effectively placing the decision in the hands of the voters in November, other members of the public want a decision made now.  Larry Durant, a local resident, says “keeping the general plan in suspension until November is unacceptable.”  In a likewise statement, Janice Cavaliere, a Director with the Amador County Association of Realtors, speaking on the association’s behalf, recommended “staying the course by taking the work completed so far forward, so we can have a general plan in place.”  The council has three options before them.  The first is to decertify the Final EIR, which would be a step backward for the city.  The second option is to place this issue on the November ballot, or hold a special election, and let the voters decide.  The third option is to rule that the referendum is invalid, which would require a court order to have the measure removed from the ballot.