San Marcos Trash Plant Still in Limbo

After patiently listening to 21 or so hours of public testimony over six nights and having already called for a public vote on the issue, the City Council finally began asking its own questions Wednesday night about the merits of a controversial trash-fired power plant.

Some of the first questions dealt with the safety of the plant versus the environmental risk and with the continued use of the existing county landfill on Questhaven Road on the southern boundary of the city.

Eventually, the council adjourned at 11 p.m., and members said they would resume their discussions Tuesday.

The San Marcos landfill currently is scheduled to close in 1993, but officials say the demand for a place to dump North County’s trash may require expansion of the dump unless alternatives are found.

Opponents to the trash plant concluded their arguments Wednesday night by characterizing North County Resource Recovery Associates, the developer of the plant, as a well-heeled, out-of-town company that wants to disrupt North County’s “rural life style with a smokestack industry.”

Bruce Hamilton, spokesman for North County Concerned Citizens, argued that “no garbage crisis exists. Even if one did, it is not your sole responsibility.”

On the other hand, Richard Chase, managing director of NCRRA, said the trash plant is a better alternative than continued reliance on landfill.

“The way we are getting rid of trash is a savage, uncivilized way. This plant is environmentally more gentle,” Chase said.

He also argued that despite the area being characterized as a “pristine, rural, agricultural area,” the land near the landfill already is zoned for industrial, commercial and utility uses.

The city Planning Commission approved the $120-million facility by a 6-1 vote last month, prompting an appeal to the City Council that the approval be overturned.

Despite the lengthy hearings and deliberations, opponents of the plant hope the matter will be resolved by voters themselves.

By a 5-0 vote Tuesday night, the City Council--acting in the wake of a successful petition drive --ordered a special election for April 30 on a measure that would allow voters to approve or reject trash-to-energy plants in San Marcos.

But, while such a ballot measure may well show sentiment favoring the controversial project, the outcome of that election may have no bearing on the construction of the facility because of significant legal questions, attorneys for both sides and the city agreed Wednesday.

The proposed city ordinance, initiated by a group called Citizens for Healthy Air in San Marcos (CHASM), would require a two-thirds vote of approval by citizens voting at a subsequent election and would require the City Council to analyze the health, safety, environmental and financial impacts of a waste-to-energy plant “of similar size and technology” elsewhere in California before a local trash-to-energy plant could be approved.

However, the April 30 election requires only a simple majority of voters to say that they want to adopt the proposed ordinance.

NCRRA officials have maintained that if they win City Council approval for the plant but voters adopt the initiative ordinance and it is upheld in court, the company simply will move ahead with plans to build the plant just outside the city limits and within the jurisdiction of the county Board of Supervisors.

CHASM organizer Jonathan Wiltshire said the initiative campaign was necessary because “there has been a tremendous amount of pressure on the City Council from developers, outside interests and county politicians for the approval of this plant, despite a lot of public sentiment that it shouldn’t be built. So the only way to address city officials who aren’t listening to the public is to address the matter in an initiative.”

Among those who previously have spoken in favor of the trash plant is County Supervisor Paul Eckert, whose 5th District includes San Marcos.

Wiltshire’s group easily collected signatures of 1,559 registered voters--15% of the city’s electorate--to put the proposed ordinance to a public vote. The City Council on Tuesday agreed to call the election--after hearing an attorney for NCRRA threaten to sue the city if it called for the election, hearing an attorney for CHASM threaten to sue the city if it refused to call the election, and meeting privately with City Atty. Warren Diven for 30 minutes.

Diven said Wednesday that several legal questions about the initiative were sure to invite lawsuits, and that the council considered the option of not calling the election because of possible legal flaws in the initiative.

One question, Diven said, is whether an initiative, which is a legislative procedure, can alter administrative decisions by the Planning Commission and City Council.

The legislative process, including the adoption of ordinances by voters’ initiatives, is used to establish law or adopt broad general policy, Diven explained, whereas the construction of the trash plant does not require a change in existing city law or general policy, simply an administrative permit given at the discretion of a governing board.

The council addressed the law last year when it amended the city’s general plan to allow the construction of the trash plant next to the existing county landfill. But this initiative does not address that general plan amendment, Diven noted.

There is the question of whether the trash plant ordinance, if approved by voters, would affect any decisions about the trash plant made by the City Council prior to the special election on April 30.

There comes a point, he said, when a project is too far along in the approval process to be legally stopped by an initiative vote. That point of being “vested” may come when building permits are granted or a judge rules that so much money already has been spent by the developer that it would be unfair to pull the rug out from under him.

Richard Chase said Wednesday that the initiative also was faulty because it addressed solid waste management affairs, which are governed by state laws and policies instead of city regulations.

He and Wesley Peltzer, the attorney for NCRRA, also criticized the initiative as “discriminatory” because it addresses a specific project--theirs--by saying it cannot be built until a similar one is in operation in California and is analyzed. “There is no such other project so, obviously, the initiative has a condition which we cannot meet,” Peltzer complained.

He said he would seek a court review of the initiative language to determine whether the election should even be held.

Michael Hogan, CHASM’s attorney, acknowledged that there were legal questions about the initiative that he could not yet answer.

“We don’t know right now, for instance, whether an election in April would affect a decision made by the City Council prior to that time,” Hogan said. “That’s one reason why we had asked the City Council, early on, to continue these hearings until after April 30 so we could see what the voters would decide.”

He also acknowledged the unanswered question as to whether an initiative can legally address an administrative function, such as the permitting of a trash plant.

Hogan strongly contested Chase’s view that waste management is solely a state issue. “He’s dead wrong. There are numerous provisions that give local authorities, such as cities, control over such issues as siting. In fact, a city simply doesn’t have to allow a plant in its city if it doesn’t want to,” he said.

Both sides have long acknowledged that, no matter what the decision by the City Council and even with the prospect of a special election, the ultimate decision on whether the plant can be built will be decided in court.

Opponents of the plant say they still are prepared to argue, should they lose on the initiative, City Council and county Board of Supervisor fronts, that the environmental impact report is legally flawed because it does not address all the environmental issues.