Trash-to-Energy Plant Proposal in Court Again

The unceasing campaign to stop the construction of a controversial, trash-fired power plant in San Marcos moved to the 4th District Court of Appeal on Wednesday with oral arguments before a three-justice panel.

The appellate court in San Diego is being asked to reverse a Superior Court decision in March that blocked plans for an initiative election April 30 in San Marcos.

The ballot measure was sought by opponents of the trash facility. It called for a city ordinance prohibiting construction of trash-to-energy plants unless approved by a two-thirds majority of voters and only after a plant of similar size and technology had been built elsewhere in California.

Neither side was willing to speculate on whether it gained or lost ground after Wednesday’s oral arguments before Justices Edward T. Butler, Don R. Work and Howard Wiener, who presided over the hearing. The justices will not begin deliberations on the case until July 21, to allow attorneys from both sides more time to submit still more arguments.

North County Resource Recovery Associates (NCRRA), which wants to build the $120-million plant with private funds, objected to the wording of the initiative. The firm says waste management is a matter of state and regional policy and should not be subject to the approval of local voters.

Furthermore, NCRRA contended, the condition that a plant of similar size and technology be built elsewhere first is discriminatory because there is no such plant in operation in California.

Finally, NCRRA’s attorneys argued, the initiative process is intended to establish policy, not overturn administrative decisions. The attorneys contend that the San Marcos City Council’s approval in January of a special use permit allowing construction of the plant is an administrative decision.

Superior Court Judge F.V. Lopardo in Vista agreed with NCRRA’s position and, in March, ordered the city not to hold the election.

Lopardo’s decision was then appealed by Jonathan Wiltshire, who spearheaded the petition drive calling for the special election. He hopes the appellate justices will allow the initiative election to be held at a future date.

Butler suggested that using the initiative process to overturn a special use permit was akin to a town hall process, which violates the concept of general law cities. In general law cities such as San Marcos, the elected representatives are responsible for decision-making on administrative matters.

He said that, in retrospect, Wiltshire’s initiative would have been legally more timely had it been posed last year. At that time the City Council amended its general plan, changing the zoning to allow the trash plant.

Work posed the possibility that, given the initiative’s wording, trash-fired power plants might be proven elsewhere in the United States to be the best technology available, yet one could not be built in San Marcos if one were not operating elsewhere in California.

Butler added jokingly, “What if the city of Florence adopted an ordinance that Mr. Galileo could not use a telescope until . . . “ The balance of his remark was lost as the courtroom broke out in laughter.

As the justices discussed the possibility of eliminating some of the possibly flawed parts of the initiative, Butler wondered aloud whether that could be done. “We’d be giving them an initiative they didn’t sign,” he observed.

The justices, in giving the attorneys for each side more time to submit additional arguments, said they would consider legal issues not specifically cited by Lopardo in March.