Vote to Zone El Toro as Park Upheld

Die-hard El Toro airport supporters were dealt a blow Wednesday when a judge ruled that Orange County voters had the right to rezone the closed Marine base from aviation use to parkland.

The decision effectively upholds the heart of Measure W, the ballot initiative passed in March. Airport backers had claimed in a lawsuit that the initiative violated state law.

The coalition--which includes the Airport Working Group of Orange County, the Orange County Regional Airport Authority and Citizens for Jobs and the Economy--argued that the initiative, which killed plans to build an airport at the base, was a “bait and switch” that falsely promised voters that El Toro would be preserved as open space.

In reality, the coalition argued, the plan that Irvine unveiled after the vote calls for housing, shopping, museums, an educational complex and a transit village.

Pro-airport attorneys further argued that even if voters knew exactly what they were voting for, state law dictates that the land-use plan for a closed military base can be changed only by the Orange County Board of Supervisors and never by referendum.

But Los Angeles Superior Court Judge Philip H. Hickok disagreed on both counts. He ruled that voters were not duped into believing that the “Great Park” would be free of development, and that a ballot initiative can be used to alter a land-use plan for a closed military base.

“A general [land-use] plan can be amended by initiative,” he said. “This is not inconsistent with or in conflict with the county’s General Plan.”

Hickok said that the only circumstance in which a ballot initiative could not change the county land-use plan would be if the Legislature passed a law that specifically prohibited it.

The ruling naturally delighted opponents of an El Toro airport. “Not even all the king’s horses and all the king’s men could put the El Toro airport back together again,” said Supervisor Todd Spitzer, one of the board’s two-vote minority opposed to an airport at the base.

“This train has not only left the station, it has arrived at another destination. What other event has to occur for these people to understand [that] this is not going to be an airport?”

Under Measure W, Irvine will annex the base from the county and zone more than 80% of it for a park. The Navy will concurrently sell the base to developers, who will be permitted to build on the remainder and must preserve the parts zoned as parkland as a condition of sale.

But even the judge predicted that litigation over El Toro will not end with his ruling.

“Any time you have emotions that run so deep, there are going to be hard feelings,” Hickok said. “I assume there are going to be appeals.”

Fredric Woocher, an attorney for airport supporters, said he would consult his clients about filing an appeal. He noted that the Navy’s intention to move ahead with the sale within months puts pressure on opponents of the park plan to get their case before appeals judges as soon as possible.

“Everybody feels a pressing need to get this resolved,” he said.

Woocher argued during Wednesday’s court hearing in Norwalk that the park plan is a sham.

“In an effort to sell the measure to voters, they proclaimed [the base] will remain as open space,” he said. “But it is no longer open space.... There will be 10-story buildings, housing, employment, you name it.”

But Hickok appeared more swayed by arguments from park supporters that voters were promised a park similar to Balboa Park in San Diego or Golden Gate Park in San Francisco, both of which include significant development in the form of museums, theaters, zoos and educational complexes.

Some issues brought up in the airport supporters’ suit remain unresolved by Wednesday’s ruling. They include a claim that Measure W violates provisions of the state-mandated transportation plan requiring Orange County to satisfy its “fair share” of regional air traffic needs, and another claim that the ballot measure “falsely represents” to voters that a park can be created at no cost to taxpayers, when that may not be the case.

No date has been set to hear those portions of the suit. Like most court challenges involving El Toro, this case was heard outside the county to avoid a potential of conflict-of-interest.

Joel Kuperberg, an attorney for Irvine, said even with some of the lawsuit yet to be argued, Wednesday’s verdict paved the way for park supporters to put legal challenges behind them and move ahead.

“The court correctly found today that the right of voters to pass an initiative is a fundamental right that will not be blithely set aside,” he said.