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Measure to Block El Toro Airport Overturned on Multiple Grounds

An Orange County ballot initiative that sought to block the development of a civilian airport at the closed El Toro Marine Corps Air Station has been thrown out by a state appellate court. The court ruled that Measure F from March 2000 interfered with essential governmental functions, crossed the line into administrative activities, and was vague. The unanimous three-judge panel of the Fourth District Court of Appeal, Division One, upheld an earlier ruling by Los Angeles County Superior Court Judge James Otero (see CP&DR Legal Digest, January 2001). "Measure F is an unworkable and excessive exercise of the initiative power," Justice Richard Huffman wrote. Measure F was the third initiative addressing reuse of El Toro, a 4,700-acre plot of flat land in unincorporated Orange County and the City of Irvine (see CP&DR Economic Development, May 2001; Insight, April 2000; Local Watch, November 1999; Base Reuse, December 1994). The first initiative was the voter-approved Measure A in 1994, which designated El Toro as an airport in the county's general plan. Two years later, voters rejected Measure S, which sought to repeal Measure A. Since then, the county Board of Supervisors, which is divided 3-2 on the issue, has spent millions of dollars planning an El Toro airport that could handle at least twice as many annual flights as nearby John Wayne Airport. But El Toro reuse is extremely controversial several communities near the base have incorporated as cities primarily to fight the airport plan and opponents qualified Measure F, the "Safe and Healthy Communities Initiative," for the March 2000 ballot. The complex initiative required two-thirds voter approval of any plan to site an airport, jail or hazardous waste dump. Everyone conceded that the proposed El Toro airport was the target of Measure F, and 67% of voters approved it. Airport supporters immediately sued. The trial court granted a stay, Measure F never took effect and the county has continued with airport planning. In December 2000, Judge Otero ruled Measure F was unconstitutional. Airport opponents, who defended the lawsuit in place of the county, appealed. But the Fourth District said Otero got nearly everything right. The state Supreme Court upheld the right of citizens to amend general plans via initiative in the landmark case of DeVita v. County of Napa, (1995) 9 Cal.4th 763 (see CP&DR Legal Digest, April 1995). The court in DeVita also upheld use of an initiative to establish a subsequent vote requirement for certain, future land use decisions. But the Fourth District held that Measure F was a different creature than the Napa County initiative reviewed in DeVita because Measure F "is not an act that directly amends the general plan or provides other substantive policy," Justice Huffman wrote. "Rather, it essentially imposes procedural hurdles upon the planning process." The court held that Measure F interfered with two essential government functions, namely, land use planning and fiscal management. For example, Measure F requires the Board of Supervisors to conduct public hearings in every city potentially affected by a proposed airport, jail or hazardous waste dump. The initiative also could be read to require public votes other than a final one on project development because the initiative requires votes on "any act by the county to approve" a project. The initiative also barred the county, with certain exceptions, from spending money for such projects unless voters approved. "Measure F essentially restricts the Board from carrying out a legislative policy already set by the voters when they enacted Measure A," Huffman wrote. The appellate panel also ruled that Measure F trod on administrative acts, which are not subject to initiative and referendum. "There is no overt statement that the previous legislative policy declared by the prior initiative will be changed, but the manner in which Measure F would restrict the Board's administrative discretion with voter approval requirements places the subject initiative firmly within the administrative category of voter enactments which are not permitted," Huffman wrote, citing City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384. "It is clear from the language of Measure F that it is an effort to administratively negate otherwise valid planning activities that have not yet been fully carried out pursuant to Measure A. Accordingly, it is not a valid subject of an initiative measure," Huffman wrote. Furthermore, the court ruled, the initiative was "so vague as to be an unworkable interference with the Board's duties." Restrictions on spending "clearly circumscribe the discretion of the Board, but it is not possible to tell to what extent," Huffman wrote. "Who is to decide what spending is necessary, or for what purposes that are sufficiently related to the project?" The court further held that Measure F appeared to violate the "single-subject" rule that applies to initiatives. And it appeared to be a local initiative that addresses matters of statewide concern the planning of a large airport which violates the state constitution. Airport opponents vowed to seek state Supreme Court review of the decision. Additionally, Orange County voters are scheduled to vote on El Toro again in March. Among other things, Measure W would, in fact, repeal 1994's Measure A. The Case: Citizens for Jobs and the Economy v. County of Orange, No. D037543, 02 C.D.O.S. 115, 2002 DJDAR 137. Filed January 4, 2002. The Lawyers: For CJE: Dana Reed and Bradley Hertz, Reed & Davidson, (213) 624-6200. For the county: Benjamin de Mayo and Thomas Agin, assistant county counsels, (714) 834-3300. For airport opponents: Steven Mayer and Richard Jacobs, Howard, Rice, Nemerovski Canady, Falk & Rabkin, (415) 434-1600.