El Toro Issue to Land Before Court of Appeal

In the latest showdown between forces battling for the future of the El Toro Marine Corps Air Station, an alliance of South County cities today will ask an appellate panel here to nullify a countywide initiative calling for a commercial airport at the military base.

The hearing before the 4th District Court of Appeal is pivotal for South County residents who have suffered a string of defeats in their bid to prevent an airport from being built at the base when the military leaves in 1999.

At issue today is Measure A, which was narrowly approved by Orange County voters in November 1994 after being largely financed by wealthy developer George L. Argyros and other county business people. Proponents promoted the measure as a way to bring thousands of jobs to the county by meeting a growing demand for passenger and air cargo service in the region.

The fate of the base remains arguably the most critical planning decision facing the county. It has pitted North County residents against South County residents and even sparked talk of a secession.

Ruling on a challenge to Measure A more than a year ago, San Diego Superior Court Judge Charles R. Hayes held that the initiative was “valid and lawful.”

The judge added that Measure A amended the county’s General Plan to allow for an airport but did not mandate one, as opponents had argued.

But an alliance of South County cities led by Lake Forest and Irvine, two cities adjoining the Marine base, filed an immediate appeal to overturn Hayes’ ruling, insisting that a commercial airport would bring unwanted traffic tie-ups, pollution and noise to their suburban neighborhoods.

Last December, the county Board of Supervisors endorsed a plan to build the commercial airport, triggering a separate lawsuit from eight South County cities. That suit contends that the county failed again to consider noise, traffic and pollution effects.

For months, attorneys in the Measure A case have been preparing for today’s oral arguments before an appellate panel headed by Presiding Justice Daniel J. Kremer.

Richard Jacobs, a San Francisco attorney for the South County cities, said he plans to argue that Measure A violated existing California law because the initiative “never once considered whether roads, highways and other infrastructure could serve an airport.”

Jacobs disputed arguments by the county that Measure A doesn’t require an airport and that it simply starts a planning process.

The initiative “is more than a wish and a hope, it’s a command,” Jacobs said. “Measure A is a piranha, not a guppy.”

Mark Goodman, a councilman with Laguna Niguel, which is opposing the airport, said he hopes the South County cities prevail before the appellate panel, but he downplayed the importance of the appeal.

“It’s only one aspect of our legal strategy,” Goodman said. “If we’re successful, it’s an immense victory. If we lose, it’s not a crucial blow. We’ve have other suits going.”

Clement Shute, a San Francisco attorney for a coalition of North County cities backing the commercial airport, said airport opponents shouldn’t expect the appellate panel to overturn Hayes’ decision.

The judge followed well-settled California law, Shute said. In a similar case involving Napa County, the state Supreme Court resoundingly upheld the local electorate’s decision to amend a general plan by passing an initiative, Shute said.

“I’m surprised at the energy they are putting into something that has no merit,” Shute said of the efforts by South County cities to challenge Measure A.

Michael S. Gatzke, a San Diego County attorney for Orange County, said he is certain his client will prevail before the appellate panel. But even if the court rules for the South County cities, the decision would not have any effect on the airport plan because supervisors did not rely on Measure A when they decided last December to endorse a commercial airport, Gatzke said.

Gatzke and the other lawyers won’t have to wait too long for a decision on the Measure A appeal. The appellate court usually issues a written opinion within 90 days.