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Antiairport Measure Gets Court Hearing

El Toro: Three-judge panel appears to favor giving the proposal a spot on the March ballot. Timing for the initiative is crucial.

November 17, 2001|JEAN O. PASCO | TIMES STAFF WRITER

In sharp questioning from the bench Friday, three appellate judges appeared to favor allowing an initiative onto the March ballot that would rescind voter approval for an airport at El Toro.

The panel spent most of their time grilling the attorney for two pro-airport groups, but had few questions for the other side.

Attorney Fredric D. Woocher, representing the pro-airport groups, acknowledged that the judicial winds weren't blowing his way. "I think it was pretty clear," he said.

The judges are hearing a challenge to the wording of the title and summary of the petition to place the initiative on the ballot. They have 90 days to rule.

Antiairport forces hope the judges' decision will force county officials to put the measure on the March ballot. The initiative would replace airport zoning at the closed Marine base with zoning for a large urban park, university and museum complex, and sports park.

"I think the arguments went well," said L. Allan Songstad Jr., a Laguna Hills City Council member and chairman of a South County coalition of antiairport cities.

Both sides in the ever-litigious El Toro debate want an answer before the Dec. 7 deadline to submit measures for the March ballot. On Dec. 4, the Board of Supervisors is scheduled to formally place the initiative before voters--a procedural step necessary once a measure is certified by the registrar.

But even if the board delays putting the initiative on the ballot because the court has not ruled, the judges could order it to be inserted.

Board Chairwoman Cynthia P. Coad was disappointed there was no ruling Friday to guide supervisors.

"I was hoping the judge would say 'Yes, it's legal,' or 'No, it isn't,' " she said. She plans to ask county attorneys to brief board members on the issue next week.

The timing of the election is seen as pivotal for airport foes. The Navy is scheduled to tentatively approve the county's airport plans Feb. 22, with final approval by April 15. Opponents want the park plan on the March ballot to stop the Navy's approval from taking place.

Recent polls have shown that the county's airport plan has lost favor among voters.

The judges focused Friday on whether airport backers, who sued over the title and summary on the initiative petitions, even had a right to challenge the wording. A state law allows proponents of an initiative to sue over the language, prepared by the county counsel's office. But the judges suggested that the law doesn't specifically say opponents can sue.

Attorney Rob Thornton, representing the coalition of antiairport cities, told the judges that there is a good reason lawmakers expressly gave measure backers the right to sue. Generally, initiatives are drafted when elected bodies fail to act, he said, and that puts proponents at odds with the very government controlling the election process.

"You could easily get into a situation where key election dates are missed or . . . you could have outright collusion of the legislative body" to sabotage a measure, he said.

Pro-airport attorney Woocher, however, argued that the Legislature wrote the law to make sure that misleading or outright false language didn't make it onto the ballot. Both sides should be allowed to challenge the wording used to woo voters, he said.

At issue, he said, is whether people "would have signed it [the petition] in the first place" if they had been given a different written snapshot of the measure. Signing petitions "sets in motion the whole election machinery. People must have true and accurate information."

Airport backers challenged the initiative title and summary this summer, arguing that the wording was misleading and gave a false impression of the measure's impact. Orange County Superior Court Judge James P. Gray agreed and invalidated the petitions, ruling that they didn't inform voters that significant development could occur at the base if the measure passed.

Measure supporters, however, kept collecting signatures and appealed Gray's ruling.

The pro-airport majority on the Board of Supervisors, which has moved El Toro airport planning forward, angered foes by refusing to appeal Gray's ruling. On Friday, Deputy County Counsel Steve Miller told judges that the office had fulfilled its role to be impartial and stood behind the wording.

In August, the judges allowed county elections officials to count signatures on the petitions and to proceed with the election process while they considered the appeal. Last month, county Registrar Rosalyn Lever ruled that the measure qualified for the ballot. The judges hearing the appeal are San Diego jurists--Orange County judges recused themselves from the issue.

As envisioned by Irvine officials, a "Great Park" at El Toro would eventually house museums, a university and a sports complex. South County forces have coalesced around the park initiative as a more fitting and environmentally friendly use of the property than an airport. The 4,700-acre base, which opened in 1943, closed in July 1999.

The park initiative was challenged by Bruce Nestande, a former supervisor and now a pro-airport activist, on behalf of Citizens for Jobs and the Economy, formed in 1994 to promote the airport. A second pro-airport group, the Airport Working Group of Orange County, joined the challenge.

Associate Appeals Justice James A. McIntyre said initiative opponents still can sue if they don't like the language that will appear on the March ballot and in the ballot pamphlet distributed to voters. Auditor-Controller David Sundstrom's office is preparing a 500-word financial analysis that also will appear in ballot materials.

"You're really concerned with the substance of the initiative" not merely the title and summary, Associate Justice Alex C. McDonald said to Woocher. "Your ultimate goal is to defeat it."

*

Times Staff Writer David Reyes contributed to this report.

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