Waiting game

It’s been more than 19 months since Dec. 1, 2016, when the group Move the Junkyard submitted more than 9,000 petition signatures to Chico City Clerk Debbie Presson.

The group had just completed a successful month-long referendum drive designed to overturn a controversial ordinance the City Council had passed in October 2016. Ordinance 2490 was designed to put an end to the 12-year battle over the fate of Chico Scrap Metal. It would do so by amending the city’s general plan in ways that allowed the East 20th Street recycling business—by then designated an illegal nonconforming use—to remain on its site across from Sierra Nevada Brewing Co. in perpetuity.

The referendum gave the city two options: rescind the ordinance or put it to a popular vote. Neither has occurred.

Readers might ask: Why haven’t Chico residents been allowed to vote on this controversial issue? Will the referendum be cleared by July 19, the deadline for getting it on the Nov. 6 ballot? What’s taking so long?

In a word: lawsuits. Where there are lawsuits, there are delays.

From the beginning, the City Council—or, more precisely, the four-member conservative majority that approved Ordinance 2490—has made every effort to invalidate Move the Junkyard’s referendum in court.

At first, opposing council members argued that the petitions were incorrectly designed and that the ordinance was an administrative rather than legislative action, and thus not subject to referendum. Then, on Jan. 23, 2017, the city and the City Council filed suit against Move the Junkyard and a sitting council member, Karl Ory, a former Chico mayor who had been a member of Move the Junkyard before being re-elected to the council on Nov. 8, 2016.

Ory is an outspoken progressive who has long sought to compel CSM to move its operations, in keeping with neighborhood improvement plans contained in the 2004 Chapman-Mulberry Neighborhood Plan.

Interviewed by the CN&R shortly after the lawsuit was filed, Ory charged that “the four Republicans on the City Council [are] suing city voters”—meaning the 9,000 people who signed referendum petitions. (See “Sued by the city,” Newslines, Feb. 9, 2017.)

Ory said he’d stepped back from his leadership role in Move the Junkyard after being elected to the council in order to avoid perceived conflicts of interest. The lawsuit, he said, was personally worrisome. “I have to believe that the voters will win out, and I have to say that it does cause worry in my household,” he said. (Ory subsequently reported legal bills amounting to $10,000 or more.)

Fast-forward nearly a year, to Jan. 16, 2018, and the courtroom of Butte County Superior Court Judge Tamara Mosbarger, where the city’s lawsuit was given its first hearing. In the end, Mosbarger came down on the side of Move the Junkyard, ruling that the referendum was valid. She did not take the next step and mandate what the council should do, however. (See “The scrap continues,” Newslines, Jan. 18, 2018.)

As fate would have it, the City Council was meeting that night. Once again it had a choice to make: either rescind Ordinance 2490, put the referendum on the next scheduled ballot, or schedule a special election.

Move the Junkyard’s preference would be rescission, Ory told this reporter. Elections are expensive, as are lawsuit appeals. “It’s time for the city to stop playing games and wasting taxpayers’ money,” he said.

During the business-from-the-floor period that evening, a few members of the public addressed council members in support of Mosbarger’s ruling. “Either rescind the action that would allow the junkyard to remain where it is or allow us, the citizens, to vote on the issue,” said Grace Marvin.

Instead, the council majority voted to launch another lawsuit, this time appealing Mosbarger’s ruling. (See “Validated argument,” Newslines, Jan. 18, 2018.)

In response, on March 22, Move the Junkyard filed a lawsuit of its own, asking the court for a writ of mandate directing the City Council “to discharge its mandatory duty” by taking one of three actions: repealing Ordinance 2490; placing Move the Junkyard’s referendum on the Nov. 6 ballot; or setting a special election for a date before Nov. 6.

Last Friday (June 29), the lead attorney for Move the Junkyard, Jim McCabe, was back before Judge Mosbarger seeking a writ of mandate that would compel the City Council to put the referendum on the Nov. 6 ballot.

Mosbarger, it turned out, needed more time to read the pleadings in the case and bumped the hearing to Tuesday (July 3).

At issue was whether she could issue a writ of mandate while an appeal of a related case (her determination that the referendum was valid) was still active. If the judge decided she could do so and issued the writ, the city either would have to rescind Ordinance 2490 or put the referendum on the Nov. 6 ballot. If she decided she needed to wait until after the appeal was decided, there wouldn’t be enough time to get the referendum on the ballot.

Attorneys on both sides offered complex arguments, but in the end Mosbarger said she still needed more time.

“I’m going to take this under submission and will have a determination by Friday [July 6],” she said.

Is that a light at the end of the tunnel?