Appeal Court Order : Trash Plant Critics Get New Hope for Election

Critics of a controversial trash-burning power plant in San Marcos who had hoped to block its construction with a special election were given some hope Thursday that the election might still be held, even though a Vista Superior Court Judge in March ruled their proposed ballot measure was illegal.

The Fourth District Court of Appeal in San Diego ordered Superior Court Judge F.V. Lopardo to show cause why his March 29 ruling, which threw out the election, should be upheld by the higher court.

The appellate court’s ruling came at the request of Jonathan Wiltshire, founder of Citizens for Healthy Air in San Marcos. The group was initially defeated by Lopardo’s ruling and appealed for it to be overturned.

At issue is a city ordinance proposed by Wiltshire’s group which, if approved at an election, would require that a trash plant be approved by two-thirds of the voters. The ordinance would also require that the plant be constructed only after a facility of similar size and technology was built elsewhere in California and analyzed for its effects on public health and safety.

Wiltshire’s group collected enough signatures to hold the election, and the City Council scheduled it for April 29.

But attorneys for the North County Recycling and Energy Recovery Center, the County of San Diego and the City of San Marcos each opposed the election, saying it was illegal because it was attempting to overturn an administrative decision of the City Council allowing the $120-million project to go forward. That decision, the attorneys argued, is not subject to the initiative process.

The Fourth District Court of Appeal on Thursday did not elaborate on its reason for ordering Lopardo to show cause why he should not be overturned. Rather, the court said that the “Superior Court is ordered to grant the petitioner the relief he seeks, or to show cause why such relief should not be granted.” The court specifically invited the county, the city of San Marcos and the trash plant’s attorneys to respond as well, on or before May 22.

Michael Hogan, Wiltshire’s attorney, said he interpreted the court’s ruling as a clear victory for Wiltshire. “It said that the initiative petition should be reinstated. As with all writs, the (Vista Superior) court is entitled to request reconsideration.”

But Wes Peltzer, attorney for the trash plant’s developers, said he saw nothing either beneficial or adverse in the court’s ruling.

“All they’re saying is that they want to have a hearing on this. It tells us nothing about their position at the moment. This is the only procedure the court has in calling for a hearing.

” . . . By having a hearing, this will allow the court to make a decision based on its merits, and we’ll get a final decision, one way or the other.”