Superior Court Judge Philip E. Schwab Jr. on Thursday set an April 19 hearing to determine whether Orange County officials violated a three-year-old court order blocking expansion of John Wayne Airport with a new plan to increase daily jet service to 73 flights.
The judge's order effectively granted Newport Beach's request for a hearing to determine whether Orange County, operator of the airport, is in contempt of a 1982 ruling that rejected an earlier airport expansion plan and prevented the county from increasing flights before preparing an acceptable environmental impact report.
Schwab issued the order a day before the U.S. District Court is scheduled to act on a request from the county to take sole jurisdiction over pending airport legal issues, which would effectively prevent Newport Beach from filing a new lawsuit in Superior Court over the expansion plan.
New Litigation Barred
U.S. District Judge Terry Hatter Jr. has already issued a temporary restraining order, temporarily barring new litigation over the airport, but city officials brought Thursday's action under the city's old lawsuit, which is still on appeal by the county.
Michael Gatzke, the county's special airport counsel, said Thursday that he has "serious concerns" that the city's appeal to Judge Schwab, though described as an outgrowth of an earlier suit, may nonetheless violate the federal court's restraining order.
"I think there's a question as to whether or not this is really a true contempt proceeding, or whether it's simply disguised as a contempt proceeding and is in fact a new action on (the new environmental impact report)," he said.
But Steven Pflaum, airport counsel for Newport Beach, said a new law that took effect Jan. 1 requires cities and counties which have had an environmental impact report (EIR) rejected in court to go back to the court for approval before proceeding with a new EIR. Superior Court Judge Bruce Sumner, who has since retired, in 1982 specifically prohibited the county from expanding John Wayne past 41 flights until the county complied with state environmental laws, Pflaum argued.
City officials say they believe the county's new lawsuit seeking to have the federal court take jurisdiction over airport issues is an attempt to circumvent the city's ability to appeal to a state court on issues of state environmental law.
"There's a great irony here. We have the County of Orange trying to escape the Orange County Superior Court," Pflaum declared.
County officials argue that they are not required to go back to Superior Court for review because they have prepared an entirely new expansion plan and accompanied it with a much more exhaustive environmental document than the old one. The new law requiring resubmittal of EIRs applies only to judgments which occurred after passage of the law, the county believes.
Schwab's ruling, issued after meeting in chambers with attorneys from both sides, does not indicate a preference for either argument but merely sets a time when arguments can be presented.
Newport Beach could have asked Schwab to issue an immediate order blocking Monday's planned interim expansion to 55 flights. But Pflaum said the city's primary objection to the new EIR is that it fails to address the potential of the proposed new terminal to handle flights in excess of 73.
"The overriding goal of the City of Newport Beach is concern about unbridled expansion of the airport," he said. "I don't mean to suggest the city isn't concerned about 55 flights. We are, but we are more concerned about 73 flights, and even more concerned about flights above 73."