Initiative Aimed at Halting El Toro Airport Is Nullified

In a move that puts the stalled El Toro airport back on track, a judge ruled Friday that voters cannot usurp the Orange County government’s authority to build a commercial airport at the closed Marine base.

The decision both resuscitates plans to build Southern California’s second-largest airport and also may embolden local governments across the region to undertake controversial projects without fear of being overruled by the initiative and referendum process.

Los Angeles Superior Court Judge S. James Otero struck down Orange County’s initiative, declaring it “fundamentally flawed” and in violation of the California Constitution and state laws. Measure F, which would have required voter approval for some major public works projects, was passed by 67% of Orange County voters in March.

“The judiciary should generally not involve itself in the initiative process,” Otero said in his 17-page ruling. “However, courts are sometimes compelled to do so.”

The decision may have ramifications in other Southern California communities where airport expansion plans are being fought, and will be studied by other municipalities for its impact on voter measures.

UCLA law professor Jody Freeman called the decision “a shot across the bow.” Measure F “was an attempt at local control, but clearly it was an unlawful attempt. It suggests that city councils and county governments and everyone involved need to look at the measures they have been passing.”

Orange County officials hailed the decision, saying it clears the way for an airport that could serve 28.8 million passengers by 2020.

As planned, El Toro, near the convergence of the Santa Ana and San Diego freeways in south Orange County, would handle more than three times the passenger volume of John Wayne Airport, but fewer than half of the 64 million passengers using Los Angeles International Airport.

Friday’s ruling was welcomed warmly from Newport Beach to El Segundo, where residents want El Toro built to help their fight against plans by Los Angeles to expand LAX.

The decision means Orange County must do its share and cannot foist its airline passengers on other airports, said El Segundo Mayor Mike Gordon.

“This is a fabulous day for us,” he said. “Orange County has to be part of the answer. It can’t just stick its head in the sand.”

Last month, Burbank voters passed a measure requiring a vote before the airport terminal there can be relocated or expanded. City officials said their airport measure, which passed by four to one, is on firmer legal ground than Measure F because the city has zoning authority over the airport.

Measure F required two-thirds voter approval before Orange County supervisors could build a new airport, a large jail within a half-mile of homes, or hazardous waste landfills.

Otero’s ruling, which came 81 days after oral arguments, struck down the measure on several grounds, saying it thwarted the state-given authority of the Board of Supervisors, interfered with “essential government functions,” was unconstitutionally vague and violated a rule that initiatives must pertain to only one subject.

He inherited the court challenge after judges in Orange County recused themselves.

Airports, jails and hazardous waste landfills are essential responsibilities of local governments, Otero wrote. “Although these powers may be subject to restrictions under the initiative process, an initiative cannot be used to greatly impair or wholly destroy those powers,” he said.

Mark Baldassare, executive director of the San Francisco-based nonpartisan Public Policy Institute of California, said the ruling “could have very far-reaching implications for one of the most dramatic changes going on in land-use planning in California today.”

“This will be very, very closely studied by local elected officials, and opponents and proponents of growth around the state, because of the constitutional questions over the power of the elected supervisors. This could be very important.”

Making a Case for the Airport

The ongoing planning efforts for the airport were unaffected by Friday’s ruling. The county expects to complete an environmental analysis of the plan by next September--a process that was delayed nearly 18 months in the face of anti-airport challenges.

“From my perspective, I’m operating with the same direction today that I had yesterday,” said Rob Richardson, interim El Toro program manager.

But stunned El Toro airport opponents vowed to appeal, and to draft a new ballot measure to kill a 1994 countywide vote that narrowly approved an airport at the base. Otero said in his ruling that repealing the 1994 measure would be one way for voters to kill the airport.

And despite their victory, pro-airport forces acknowledged that one message of Measure F remains: Supervisors must restore credibility to the El Toro airport planning process. In recent opinion polls, only about a third of voters said a new airport is necessary.

“The message in Measure F is clear in that the people want a greater say in the process,” said Board Chairman Chuck Smith, who was in Ohio visiting relatives Friday and commented through an aide. “We need to do a better job with community outreach and ensure the public’s involvement.”

Businessman George Argyros, who has bankrolled the pro-airport effort with $3.5 million of his own money since 1994, hailed Friday’s decision but said he expects the fight over El Toro to continue.

“There comes a time when the voters have to wake up,” he said. “I hope they take a more realistic look at [the airport proposal] now and ask for the truth.”

Argyros said county supervisors should move quickly to address the concerns of El Toro’s neighbors and embrace his proposal for an airport half the size of the one planned. Pro-airport county officials have been steadfast that the new airport must be studied for its maximum impact and that it can be reduced in size later.

Other airport supporters throughout Orange County joined Argyros in urging supervisors to become more aggressive in promoting the airport and establishing why it is needed, not only for Orange County, but also for the rest of Southern California.

“I think they ought to go full speed ahead,” said Garden Grove Councilman Mark Rosen, a member of a 16-city coalition that backs an El Toro airport. “This gives the county a chance to start over with strong leadership and tell the county’s side of the story. There has been a tremendous mismatch in spending [against the airport]. That needs to be corrected.”

Anti-airport forces, meanwhile, dismissed the judge’s decision as temporary.

“We’re not naive. We knew we had to go the full 12 rounds in this battle,” said Supervisor Todd Spitzer, who represents south Orange County communities near the Marine base. He said airport opponents are riding a “freight train of momentum” that ultimately will be unstoppable.

Airport opponents said they would file their appeal later this month, and would ask an appellate court to reinstate Measure F pending the appeal.

“Nothing about El Toro has ever been easy,” said Meg Waters, who earlier in the day had listened wide-eyed to the judge’s decision by speaker phone, an unopened bottle of champagne resting on a nearby bookshelf. “Neither side has the slightest intention of giving up.”

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Times staff writers David Reyes, Monte Morin, Mike Anton and Hector Becerra contributed to this story.