Metropolitan News-Enterprise


Tuesday, January 8, 2002


Page 1


C.A. Strikes Down Orange County Anti-Airport Measure as Vague


By KENNETH OFGANG, Staff Writer/Appellate Courts


An initiative measure backed by 67 percent of Orange County voters, intended to make it harder to implement major public projects like the proposed airport at the site of the former El Toro Marine Corps Air Station, is unconstitutional, the Fourth District Court of Appeal has ruled.

Affirming a ruling by Los Angeles Superior Court Judge S. James Otero, sitting on assignment to the Orange Superior Court, Div. One said the measure was unconstitutionally vague and infringed upon public officials’ authority to make administrative decisions.

Measure F was approved in March 2000. It would have imposed a number of procedural and spending restrictions on development of any airport, jail, or landfill project in the county, including a requirement that any such project be approved by a two-thirds majority of county voters.

The evidence before Otero, Justice Richard Huffman explained Friday, showed that airport opponents were the primary backers of the measure but broadened its scope in order to gain support from other geographic areas of the county.

It was one of a series of measures that have appeared on Orange County ballots in nine years since El Toro was scheduled for closure.

In 1994, voters narrowly approved Measure A, allowing an airport at the site, subject to normal regulatory approvals. Measure S, which would have repealed Measure A, was defeated in 1996.

Measure W, which would rezone the property for a large park and nature preserve, will appear on the March 5 primary ballot.

Opponents of Measure F, including Citizens for Jobs and the Economy—the pro-airport group headed by former county supervisor and state legislator Bruce Nestande—tried unsuccessfully to keep it off the ballot. Three days after Measure F was approved, they filed suit again.

Otero was assigned to the case after the entire Orange Superior Court bench and several Los Angeles Superior Court judges were recused. The appeal was assigned to Div. One after the justices of Div. Three recused themselves.

The panel was “mindful that initiative measures are not to be stricken down lightly,” Huffman wrote.

“Nevertheless, in reviewing the record and briefing in this case, we have found Measure F to be clearly beyond the power of the electorate and defective in these three major respects:  It interferes with the essential government functions of fiscal planning and land use planning; it impermissibly interferes with administrative or executive acts; and it is unconstitutionally vague in its provisions, such that the County and its Board may reasonably be heard to complain that they would not be able to comply with it because of its alleged vagueness,” the justice wrote.

Implementation of Measure F, the justice elaborated, would place “numerous roadblocks” on the planning process mandated by state law and on federal policy governing conversion of closed military bases to civilian use. He cited as an example the requirement that a public hearing be held in every city that could be affected by a project—potentially all 34 of the county’s cities.

Huffman went on to cite the state constitutional principle that legislative acts are subject to the initiative and referendum but administrative and executive acts are not. Measure F, he said, would violate the principle by interfering with county supervisors’ “essential government functions…such as defining the project, preparing and processing EIRs, holding hearings for approval of a project, and/or placing an approved project on the ballot.”

Several features of Measure F, Huffman went on to say, are unconstitutionally vague. He cited in particular the requirement that “any act to approve [a project] by the board” achieve the necessary two-thirds voter approval at a “County General Election,” saying it was unclear how many such acts might occur with respect to a particular project or what constituted a county general election.

The case is Citizens for Jobs and the Economy v. County of Orange, 02 S.O.S. 60.


Copyright 2002, Metropolitan News Company