Proposal to Block San Marcos Trash Plant Ruled Illegal

Times Staff Writer

A proposed initiative intended by its authors to block the construction of a trash-burning power plant in San Marcos was ruled illegal Friday by a Superior Court judge.

The decision by Judge F.V. Lopardo was a serious blow to critics of the $120-million project. But they vowed to continue their opposition to the trash plant through continued lawsuits attacking the validity of the project's environmental impact report.

The initiative, which previously was set for a special citywide vote in San Marcos on April 30, called for the adoption of a city ordinance which would require that a proposed trash plant first be approved by two-thirds of the voters and that it be built only after a plant of similar size and technology was built elsewhere in California and analyzed in terms of its effect on public health and safety.

But Lopardo, after presiding over four hours of debate among four attorneys on Friday, concluded, "This initiative, on its face, is clearly invalid."

He said the measure was flawed for three major reasons:

- The initiative sought to overturn an administrative decision of the City Council which, in January, approved construction of the trash-burning power plant by granting a special use permit. Initiatives, Lopardo ruled, are designed to establish legislative policy, not to overturn administrative decisions such as the one made by the City Council.

- The requirement that a trash plant of similar size and technology first be built elsewhere in the state was "an impossible standard for compliance" because, as Lopardo said, "there is no such plant and there may never be one."

- The initiative addressed "a matter of statewide concern," solid waste management, and therefore such facilities should not be subjected to a two-thirds majority approval of voters in any particular city.

The initiative was reluctantly placed on the ballot by the San Marcos City Council after a group called Citizens for Healthy Air in San Marcos (CHASM) collected enough signatures forcing the special election. The City Council voted 4 to 1 in January to allow the plant's construction.

Warren Diven, the San Marcos city attorney, said afterwards it was unclear whether the April 30 election would still be held, because the City Council has since ordered a second measure, unrelated to the trash plant issue, to be considered on the same ballot.

The trash plant initiative may remain on the ballot even though it is now moot, Diven said, because of the possibility that CHASM would appeal Lopardo's ruling and a higher court could overrule the judge's decision.

Jonathan Wiltshire, CHASM's founder, said a decision on whether to appeal Friday's ruling would be made over the weekend.

"We'll have to give it a good, long thought," he said.

Asked whether opponents of the trash plant would quit fighting the project because they have been unable to stop it at the Planning Commission, the City Council and now in court, Wiltshire said, "I wouldn't be this far if I didn't believe that right wins out, and I'm on the side of right."

Frank Oddo, a spokesman for North County Concerned Citizens, the group which first sparked organized opposition to the trash plant, said, "This (opposition) won't be over until we see the foundation poured."

"I thought he (Lopardo) might knock out the two-thirds requirement or the one that says another plant would have to be built elsewhere first. But to knock out the whole initiative was a shocker," Oddo said.

The trash plant, to be constructed at the county landfill on Questhaven Road near the community of Elfin Forest, is designed to burn more than 1,000 tons of North County trash daily, creating electricity and reducing dependence on the landfill. The project already has won the approval of national, state and county environmental agencies, which have concluded that, with state-of-the-art air pollution control devices, the trash-to-energy project is a better alternative than continued use of landfills.

Critics of the plant, on the other hand, say the plant would still spew dangerous pollutants into North County's air, would generate increased traffic and, because of a 300-foot-high smokestack, would be an eyesore.

The plant would be privately built and operated by North County Resource Recovery Associates (NCRRA), under a contract with the landfill's operator, Herzog Construction Co. Herzog, in turn, operates the landfill under contract with the county.

Pam Thornton, a company spokesman, said NCRRA will now line up financing for the project and begin construction before the end of the year. The plant is expected to be in operation before the end of 1987, she said.

Wes Peltzer, NCRRA's attorney, said the company was relieved by Lopardo's ruling because had the initiative been deemed legal, there was the possibility the project "would have been foreclosed. Now, we're free to make some decisions to get on with it."

NCRRA, wary of the initiative's potential in dooming the project, also had sought urgency legislation in Sacramento which was intended to outlaw initiatives which require that trash plants be approved by a two-thirds majority vote. That legislation stalled on Monday when it was sent to the Assembly's Local Government Committee, where its fate was, at best, uncertain. But, in the case of San Marcos, that bill is now irrelevant.

Much of Friday's legal debate centered on whether the initiative could legally overturn the City Council's decision in January allowing construction of the plant.

Peltzer successfully argued that while the initiative process can establish land-use policies, this initiative was introduced after the City Council already amended the zoning and general plan allowing the trash plant as a special use.

Because that decision was made by the City Council last year, the council's decision in January, specifically allowing NCRRA to build the plant, was nothing more than an administrative decision that is out of the grasp of an initiative's power. Lopardo agreed.

Michael Hogan, CHASM's attorney, conceded during questioning by Lopardo that even if the initiative were allowed, he was unsure whether it would have retroactive powers to overturn the council's January decision.

Hogan had argued that the initiative election should be held and that its legal merits should not be debated until after April 30.

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