O.C. Tollway’s Takeover of Road May Be Illegal : Study: Non-binding ruling says hearings, impact report were needed before transfer of Newport Coast Drive.

Orange County and tollway agency officials apparently broke state law when they incorporated part of a public road into a tollway without first conducting hearings and filing an environmental report, according to an opinion by the legislative counsel.

The written opinion, released Thursday, was offered in response to a request from Assemblyman Gil Ferguson (R-Newport Beach), who had asked the counsel to study the legality of turning a three-mile segment of Newport Coast Drive into a toll road.

The issues of whether the county was required to hold public hearings before giving away Newport Coast Drive and whether the San Joaquin Hills Transportation Corridor Agency needed to file a new environmental impact report as a result are not new.

Mike Stockstill, spokesman for the tollway agencies, said the issues already have been addressed and expressed confidence that the legislative counsel’s opinion would not affect the San Joaquin Hills toll road.

The opinion by the legislative counsel, the office that researches legal issues for members of the Assembly, is not binding.

Newport Coast Drive is a county road used by motorists without charge. The county agreed to turn over part of the road to the Transportation Corridor Agencies, which are building the San Joaquin Hills tollway and two other toll roads in the county. When completed, the San Joaquin Hills tollway, including the disputed section of Newport Coast Drive, will stretch 17 miles from San Juan Capistrano north to Jamboree Road.

The legislative counsel opinion said the Board of Supervisors had the authority to give the county-owned road to the tollway authority. However, the transfer could not occur without the board first holding public hearings, at which the public would have to be told that the road was being abandoned because it is “unnecessary for present or prospective use.”

“The board didn’t do this,” Ferguson said. “The county transferred Newport Coast Drive (to the tollway agency) by voting on it as part of the consent calendar and without public notice or hearing.”

Newport Beach Councilman Phil Sansone, a critic of the county’s decision to give the road to the tollway agency, said he was not surprised by the counsel’s findings.

“There were no specific public hearings to incorporate that portion of the road into the tollway,” Sansone said. “There were generalized hearings on the environmental report, but nothing specific to the issue of giving Newport Coast Drive to the agency.”

Converting the county road to a tollway also robs the public of the right to use the road, the legislative counsel opinion said.

“The conversion of a county highway to a toll road effectively terminates the general public’s unconditional right to use the highway, since use of the toll road is restricted to a particular class of motorists,” the opinion said.

Furthermore, the opinion said, the county’s decision to abandon the road and convey it to the tollway agency is, in legal terms, a “project” that requires a new environmental impact report.

“The county’s action may result in that highway carrying a different volume than before,” the opinion said. “If it is concluded that the adverse or beneficial impacts of that traffic . . . will have a significant effect on the environment, it would be necessary to prepare (an environmental impact report).”

Stockstill downplayed the significance of the legislative counsel’s opinion. The San Joaquin Hills Transportation Corridor Agency is confident it followed the letter of the law in incorporating Newport Coast Drive into the toll road, he said.

“The counsel seems to agree with us on virtually every point, except on the very narrow question of what constitutes an abandonment by the county of a public road,” said Stockstill, who received a copy of the opinion. “Obviously, we don’t agree that the county simply abandoned the road.”

Besides, the county’s plan to extend Newport Coast Drive to Bonita Canyon Drive will make the issue moot, he added. The counsel’s opinion said that the county could avoid the need for a public hearing and environmental report if a public road running parallel to the disputed section of Newport Coast Drive were built.

However, Sansone said the county has not decided on a route for the proposed extension because of opposition from local groups, who do not want the road built in their areas.

As for the legislative counsel’s finding that a new environmental report is needed, Stockstill said the disputed section of Newport Coast Drive was included in the environmental impact report adopted by the agency in 1991.

Ferguson said that today he will ask the county to hold hearings on the transfer of the road and that the tollway agency file a new environmental report.

“In my opinion, they would better serve the public if they backed up and do that now,” he said. “We would save the taxpayers millions in potential lawsuits, which could delay construction. It would be better if the county admitted they made a mistake and hold the hearings.”