El Toro Airport Initiative Stays on Ballot, Judge Rules : Courts: He has doubts about the measure but says the shortcomings pointed out by Lake Forest are not enough to deprive the people of the right to vote on the issue.

An Orange County Superior Court judge Thursday refused to invalidate an initiative that will allow voters to decide in November if a commercial airport should be built at the El Toro Marine Corps Air Station.

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After hearing arguments from Lake Forest, which sought to kill the initiative, and from airport proponents, Judge Donald E. Smallwood acknowledged that he had some doubts about the legality of the ballot measure.

Most importantly, the judge said, he was not convinced that the airport proponents had reconciled the traffic impacts with the county’s general plan.

Mark Epstein, the lawyer representing the pro-airport group, called the Committee for 21,000 Jobs, had contended that highway traffic would not increase appreciably if an airport were built and that the county’s general plan has a mechanism to pay for any necessary road improvements.

Smallwood questioned whether either was true and whether the initiative illegally circumvented the need to plan for more intense commercial development that would surround an airport.

But Smallwood said Lake Forest’s lawyers had not persuaded him that any shortcomings in the initiative were serious enough for him to deprive the people of their right to vote on the issue. Higher state courts, he said, repeatedly have upheld “the importance of the initiative process” to a democratic government.

Smallwood said he had scant time to research the complex issues surrounding the initiative because the county registrar of voters was pressing for a decision before the November ballot goes to print next week.

He specifically left open the possibility that Lake Forest could return to court to try to repeal the initiative if the voters approve it.

“I suspect I will see you again,” he told the lawyers afterward.

Lake Forest City Atty. Jerry M. Patterson said the city probably would not appeal the decision and would wait to see the election results.

“It’s tough for a judge to make a ruling that denies the right to vote. We knew that,” he said. “We knew that we would have the uphill side of the battle.”

Patterson said he thought it was important for the city to challenge the initiative before the election so that it could not be accused of “sitting on our rights.”

He said that while he was disappointed with the judge’s decision, he was pleased that Smallwood “made the point that there are some concerns. I think we laid the foundation for showing the initiative is invalid.”