[Electronically scanned from printed copy.]


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

CITY OF BURBANK, CALIFORNIA, a municipal corporation, Plaintiff,

vs.

BURBANK-GLENDALE-PASADENA AIRPORT AUTHORlTY, a joint powers agency, Defendants.

MICHAEL NOLAN, Plaintiff intervener

vs.

CITY OF BURBANK, a municipal corporation, Defendant in Intervention.

CASE NO. BC 259852

RULING ON MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY ADJUDICATION
AGAINST PLAINTIFF INTERVENER MICHAEL NOLAN;

RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS


INTRODUCTION

On October 9, 2001, the voters of the City of Burbank ("City" or "'Burbank") approved Measure A, a ballot initiative that purports to set forth specific and detailed directions regarding how, when and under what circumstances the City can consent to acquisition, financing, zoning and construction at and around the Burbank-Glendale-Pasadena Airport (the "Airport").

Plaintiff-Intervener Nolan ("Nolan") alleges that Measure A is legal and must be enforced.


STATEMENT OF PROCEDURAL POSTURE

The First Amended Complaint in this case sought declaratory relief against the Airport Authority regarding the leggality of several provisions of Measure A. The Airport Authority demurred to the First Amended Complaint on the ground, in essence, that there was no controversy between the City and the Airport Authority because both agreed that Measure A was illegal. The Court overruled the Airport Authority's demurrers, ruling that there was an actual controversy between the parties because, inter alia, while both parties believed Measure A to be illegal, the City was legally obligated to enforce Measure A and the Airport Authority had threatened to sue the City if it did enforce Measure A. The Court further scheduled an initial status conference or a hearing on an Order to Show Cause regarding Default for April 17, 2002.

Rather than respond to the First Amended Complaint on the merits, the Airport Authority defaulted by failing to file any response in the time allowed by the Court. On February 7, 2002, the City filed its Request for Default Judgment seeking (1) entry of default and (2) entry of default juldgment in the form of a declaratory judgment regarding the legality of Measure A.

While the City's Request for Default Judgment was still pending, Nolan sought to intervene in the case in opposition to the City in order to defend the legality of Measure A. As specified in the Stipulation between the City and Nolan filed in connection with his Ex Parte application for Leave to Intervene, the City supported Nolan's intervention on the condition that his intervention not delay prosecution of this action and that Nolan's claims against the City would be resolved on the same schedule as the City's claims against the Airport Authority.

In his Complaint in Intervention, Nolan seeks the precise opposite of what the City seeks in its First Amended Complaint. Specifically, where the City seeks a declaration that a portion of Measure A is illegal, Nolan seeks a declaration that such same portion is legal. Accordingly, the legal grounds for the City's Request for Entry of Default Judgment are the same legal grounds for its Motion for Summary Judgment against Nolan.


STATEMENT OF FACTS

As set forth in the City's Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment or, in the Alternative, Summary Adjudication, there are very few material facts implicated by this case. Burbank and Nolan disagree as to whether certain aspects of Measure A are illegal. Burbank and Nolan agree, however, as set forth in the Order Granting Leave to Intervene dated February 28, 2002, that the issues raised in the Complaint in Intervention are primarily issues of law and are appropriate for resolution by summary judgment.

The Airport is located within the cities of both Burbank and Los Angeles; the terminal, parking areas, and the majority of the runways and support areas, however, are located within the boundaries of Burbank. Subject to the terms of the Joint Powers Agreement that created the Airport Authority and California law, the Airport Authority manages the operation of the Airport as a separate local agency. Cal. Gov't Code § 6546.1; City of Burbank v. Burbank-Glendale-Pasadena Airport Authority, 72 Cal.App. 4th 366, 370 (1999).

Although the City, has no direct management role in the day-to-day operation of the Airport, it maintains land-use jurisdiction over Airport property, just as it does over all property located within the City. [See City of Burbank, 72 Cal.App. 4th at 375.] The City has designated in the Burbank Zoning Code areas within the City where Airport and Airport-related uses are permitted and has provided for Airport and Airport-related development in the Burbank General Plan. The City reviews Airport-related projects to ensure consistency with the Zoning Code and General Plan and issues building and other permits for activities at the Airport.

In a special initiative election on October 9, 2001, Burank voters approved Measure A [endnote] by fifty-eight percent (58%) of the voters submitting qualified ballots. Pursuant to California Constitution, Article II, Section l0(a), Measure A became the law of the City on October 10, 2001. Because Measure A is now the duly enacted law of Burbank, the City's Community Development Department may not issue a building permit for Airport-related projects without determining that all applicable requirements of Measure have been satisfied.

Measure A requires the City to hold a referendum election and secure two-thirds (2/3) voter approval of City Council consent to any final financing or construction of an airport terminal and/or modification of any provision of Measure A. It further requires that the Airport comply with 12 separate conditions (including imposition of curfews, caps on numbers of flights and passengers, bans on certain aircraft, imposition of a sound insultation program, preparation of an environmental impact report and a revised master plan) before the City consents to zoning, financing or construction of "any new, rebuilt, relocated, or expanded Airport facility, under any conditions or due to any circumstances." These conditions must be satitified by thc Airport regardless of whether the project is likely to result in any additional aircraft and even for projects not sponsored by the Airport Authority. Measure A also calls for the City to set up special offices or programs to enforce the provisions of Measure A, imposes fines for non-compliance, and requires the City to conform all its other laws to Measure A, and automatically deems all of the City's laws "to have been conformed so as not to be in conflict with this intiative...."

Based on analyses performed by the Burbank City Attorney prior to October 2001, City Council and staff believed that some or all of measure A was illegal and that enforcement of such provisions could subject the City or its officials to potential liability. In addition, City staff concluded that the effects and costs of implementing Measure A likely would be significant but coluld not be assessed with any specificity, in large part because of the vague and ambiguous wording of Measure A.

Upon approval of Measure A, the City can be faced with attempting to apply its requirements to a number of pending or contemplated projects related to the Airport, including the relocation of Parking Lots A & B which is being pursued to increase margins of safety. These projects are facially subject to Measure A's requirements (i.e., they involve construction of Airport facilities and require permits or other approvals from the City). Accordingly, before proceeding to carry out its statutory requirement of enforcing its duly enacted laws, which in this case could result in denial of applicants' rights as well as forestall needed safety improvements, the City sought a declaration from the Court as to what provisions of Measure A, if any, are legally enforceable.


RULING ON JUDGMENT ON THE PLEADINGS

The City has standing to bring this suit pursuant to California Code of Civil Procedure § 1060, which expressly allows "any person" to seek a declaratory judgment "in cases of actual controversy relating to the legal rights and duties of the respective parties...." The California Supreme Court has long recognized that a city is a "person" within the meaning of the Declaratory Judgment Act. Hoyt v. Board of Civil Service Comm'rs, 21 Cal.2d 399, 404-405 (1942). As the Court stated:

Since the declaratory judgment statute deals with procedure only, however, there is no reason, why the satute should not be interpreted so as to authorize the determination by that procedure of any issue which might be determined against a municipal corporation in an ordinary action at law. Id. at 404.
Having the right to bring a declaratory judgment action, Burbank need only allege in its complaint facts showing (1) a proper subject for declaratory relief, and (2) an actual controversy relating to the rights or obligations of a party. Brownfield v Daniel Freeman Marina Hosp., 208 Cal.App.3d 405, 410 (1989). If those elements are satisfied, "a party is deemed to have "standing" to bring a declaratory judgment action. Sherwyn v. Department of Soc. Serv., 173 Cal.App. 3d 52, 58 (1985) (test for determining "standing" to bring a declaratory judgment action is whether an actual controversy exists). See also 3 Bernard E. Witkin Cal. Proc. Action §§73, 74 (4th ed. 2000).

This court already has considered whether the First Amended Complaint states a valid claim for declaratory judgment and concluded that it does: "It appears that there is an actual controversy of great public interest between the parties that the court should decide." In particular, the Court noted that the potential of liability from threatened litigation supports the need for declaratory relief in this case.

In a case considering the standing of a city to mount a pre-election challenge to the legality of an initiative measure, the court expressly rejected Nolan's argument that only a citizen or taxpayer can challenge an initiative and set forth the basic test of standing:

It is of course basic that "[e]very action must be prosecuted in the name of the real party in interest. . . ." (Code Civ.Proc., § 367.) Plaintiffs have standing to sue if they or someone they represent have either suffered or are threatened with an injury of sufficient magnitude to reasonably assure the relevant facts and issues will be adequately presented.
City of Irvine v. Irvine Citizens Against Overdevelopment, 25 Cal.App. 4th 868, 874 (1964) (citations omitted). Applying that test, the court found that the city had standing to challenge the legality of an initiative measure because adoption of the measure would have placed the city in a legal dilemma because any course of conduct would expose the city to potential liability and/or expense. Id. See also Stanislaus Area Farm Economy v. Board of Supervisors, 13 Cal.App. 4th, 141, 149-50 (1994) (if a local government believes a proposed initiative to be illegal, "[that) governmental body, or any person or entity with standing, may file a petition to writ of mandate, seeking a court order removing the initiative measure from the ballot." Plainly, there is no per se role denying standing to cities.

As the Court in City of Irvine noted, a city has standing to bring an action when the interests of its residents are affected by a conflict between state and local laws. The fact that the duly-elected government, acting through the City Council, may have a different opinion than some of its residents as to the legality and constitutionality of an initiative, does not remove the standing of the City to file a lawsuit to protect its residents.

Indeed, although pre-election challenges are not necessarily favored, cities have been permitted to challenge the validity of an initiative on the same basis that Burbank brings this declaratory judgment action -- that the initiative contains numerous provisions that appear to be illegal and/or unconstitutional. See City of Irvine, 25 Cal.App. 4th at 874; Save Stanislaus, 13 Cal.App. 4th at 140; Yes on Measure A v. City of Lake Forest, 60 Cal.App. 4th 620, 626 (1997), where plaintiffs challenged the City's use of funds to affirmatively file an action seeking to have the provisions of an initiative declared to be illegal. To declare, as Nolan requests, that a city lacks standing to challenge an enacted initiative because it is illegal, when cities clearly have standing to mount a pre-election challenge to an initiative on the identical basis, not only would be wholly inconsistent with the law, it also would promote the disfavored practice of making pre-election challenges to initiative measures.


RULING ON SUMMARY JUDGMENT MOTION

I. THE COURT DECLARES THAT MEASURE A IMPERMISSIBLY INTERFERES WITH POWERS DELEGATED EXCLUSIVELY TO THE BURBANK CITY COUNCIL UNDER PUBLIC UTILITIES CODE SECTION 21661.6

Although the voters of a home rule city such as Burbank retain the right to enact local land use laws, voter-initiated laws may not usurp the authority granted by the state Legislature to a specific governmental body. As explained in Bagley v. City of Manhattan Beach, 18 Cal. 3d 22, 24 (1976): "When the Legislature has made clear its intent that one public body or official is to exercise a specified discretionary power, the power is in the nature of a public trust and may not be exercised by others in the absence of statutory authorization." Applying this rule, the California Supreme Court has held that when the legislature designates a "board of supervisors" or "city council" to exercise a particular power, the exercise of that power cannot be restricted by initiative: "[T]he Legislature intended that the authority thus delegated [under Cal. Gov't § 66484.3] be exercised by the local legislative bodies specifically and exclusively, thereby precluding use of the initiative or referendum in this limited area." Committee of Seven Thousand v. Superior Court, 45 Cal. 3d 491, 512 (1988) (emphasis added). See also DeVita v. County of Napa, 9 Cal. 4th 763, 776 (1995); Citizens for Jobs and the Economy v. County of Orange, 94 Cal. App. 4th 1311, 1326 (2002) (rejecting an initiative that sought to direct the County when to approve a new airport because "the Legislature intended to delegate the exercise of local legislative authority exclusively to the local entity's governing body, thereby precluding initiative and referendum.").

Public Utilities Code § 21661.6 requires the approval of a host jurisdiction prior to an airport's acquisition of property for airport expansion within that jurisdiction's boundaries and prior to any change in a previously approved plan. The Legislature designated the Burbank City Council as the exclusive entity empowered to approve or disapprove plans for the acquisition and use of property within Burbank for Airport projects. See Pub. Util. Code § 21661.6 (c) ("The board of supervisors or the city council, as the case may be, shall, upon notice, conduct a public hearing on such plan, and shall thereafter approve or disapprove the plan."). As explained by the Court of Appeal, this provision makes clear that the power of the Burbank City Council to approve airport expansion under PUC § 21661.6 is not subject to delegation. City of Burbank, 72 Cal. App. 4th at 376-77.

Measure A, by its terms, applies to, among other things, decisions of the City Council under Public Utilities Code § 21661.6, including approval of a plan for the use of any property within Burbank for construction or expansion of Airport facilities prior to the Airport Authority's acquisition of such property and approval of an amendment to a previously approved plan. A number of the Airport Authority's pending or contemplated projects require City Council approval pursuant to Section 21661.6. For example, the Airport Authority's proposal to relocate parking lots A and B require Section 21661.6 approval pursuant to Section 2166l.6(e) because the Airport Authority acquired that land pursuant to a plan previously approved pursuant to Section. 21661.6.

By requiring 2/3 voter approval for projects that involve construction of an Airport terminal (¶ 3), and by placing 12 separate conditions on any Airport construction project (¶ 4) -- which would include the pending parking lot relocation project -- Measure A unlawfully usurps the approval authority under section 21661.6 that the Legislature granted exclusively to the Burbank City Council. Accordingly, these provisions of Measure A is declared to be illegal.


II. THE COURT DECLARES THAT MEASURE A'S TWO-THIRDS VOTE REQUIREMENT ON AIRPORT-RELATED LAND USE DECISIONS AND AMENDMENTS TO MEASURE A VIOLATES THE CALIFORNIA CONSTITUTION AND STATE ELECTION LAW

Measure A, which was approved by less than two-thirds of those casting ballots, mandates that any project involving "the financing and/or construction of an airport terminal" must be approved by two-thirds of the electorate of Burbank. Measure A also prohibits the Burbank City Council from passing any ordinance modifying any aspect of Measure A without subjecting such law or ordinance to a two-thirds affirmative vote of the electorate.

California Constitution Article II, Section lO(a), mandates that an initiative or referendum is effective upon approval of a simple majority of electors: "An initiative, statute, or referendum aprroved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise." Similarly, California Election Code § 9217 provides: "If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city." California Election Code § 9222 provides:

The legislative body of a city may submit to the voters, without a petition therefor, a proposition for the repeal, amendment, or enactment of any ordinance, to be voted upon at any succeeding regular or special city election, and if the proposition submitted receives a majority of the votes cast on it at the election, the ordinance shall be repealed, amended, or enacted accordingly.
As summed up by the California Supreme Court: "Initiatives, whether constitutional or statutory, require only a simple majority for passage." Kennedy Wholesale, Inc. v. State Board of Equalization, 53 Cal.3d 245, 250 (1991).

The voting provisions of Measure A (¶¶ 3 and 7) directly conflict with California Constitution, Article II, Section 10(a) and California Election Code §§ 9217 and 9222, by requiring that any approval of financing and/or construction of an airport terminal and modification of any of the termS of Measure A be subjected to initiatives or referenda requiring a two-thirds affirmative vote of the electorate. The initiative process cannot be used to permit a simple majority of voters to require that future actions be authorized only upon approval by 2/3 of the voters.

Additionally, California Election Code § 9222 allows for any proposition that would amend or repeal Measure A to be voted on at "any succeeding regular or special city election." Similarly, California Election Code § 9214 requires the City Council to order an immediate special election to vote on any initiative or referendum that has been "signed by not less than 15% of the voters of the city . . . and contains a request that the ordinance be submitted immediately to a vote of the people at a special election." In contrast, Measure A directly conflicts with state law: it declares that any attempt to modify Measure A may be voted on only at a "regular municipal election." Because Paragraphs 3 and 7 of Measure A violate both the Election Code and the State Constitution, they cannot legally be enforced by officials of the City of Burbank and should be declared to be illegal.


III. THE COURT DECLARES THAT MEASURE A IS BEYOND THE INITIATIVE POWER CREATED BY THE CALIFORNIA CONSTITUTION

Although broad in scope, the initiative power does have limits. An initiative may not constitute "indirect legislation," nor may an initiative address administrative and non-legislative matters. Measure A exceeds the initiative power granted by the Constitution in both respects.

First, the initiative power does not permit the electorate to adopt "indirect legislation," which are measures that, rather than enact a specifically-worded statute, direct a legislative body to enact future, unspecified legislation. Marblehead v. City of San Clemente, 226 Cal.App.3d 1504 (1991). Courts have had little difficulty finding that a general direction in an initiative to take future legislative action to amend the laws of the City is beyond the initiative power and thereby renders an initiative calling for such action invalid.

The actual amendment of the general plan is left to the city council. Which elements of the general plan are affected and how the substantive terms of Measure E are to be incorporated into these elements is unexplained.... Therefore, we conclude that Measure E constitutes an invalid exercise of the electorate's initiative power.
Marblehead, 226 Cal.App.3d at 1510. Paragraph 8 of Measure A requires a future City Council to enact unspecified laws to amend the City's General Plan, Zoning Ordinance and all other City laws that may not conform to Measure A. Measure A does not describe which laws are to be "conformed" or how to incorporate the terms of Measure A into all city laws so as to achieve "conformity." Instead, Paragraph 8 simply requires the City to "conform all applicable laws to this initiative." Accordingly, Paragraph 8 constitutes prohibited indirect legislation and is therefore void.

Measure A is additionally infirm because it is not limited to legislative matters. The initiative power is restricted to the consideration of statutes and amendments to the Constitution. Administrative and other non-legislative matters are not subject to initiativ. Lincoln Property Co. v. Law, 45 Cal.App.3d 230, 234 (1975), City of San Diego v. Dunkl, 86 Cal.App.4th 384, 399, cert. denied, 151 L. Ed. 2d 148 (2001).

Numerous provisions of Measure A seek to control how the City administers both the provisions of Measure A and other laws. Paragraph 5 of Measure A purports to direct the City with regard to setting up a city department, investigating complaints and filing reports. Paragraph 6 calls for the City to establish a program to "provide independent noise monitoring of aircraft activity," a purely administrative activity. Paragraph 4 seeks to place specific conditions on how and under what circumstances the City Council consents to airport expansion projects, including projects subject to Section 21661.6. These are administrative matters that are beyond the initiative power. See e.g., Citizens for Jobs, 94 Cal.App.4th at 1331-32; Mueller v. Brown, 221 Cal.App.2d 319, 326 (1964) (where the Legislature had granted to the County Board of Supervisors the right to choose the location for courthouses, a County initiative that sought to restrict potential locations interfered with the administrative duties of the County and, therefore, could not be the subject of an initiative). Finally, no legislative act, whether by initiative or ordinance, can restrict the enactments of future city councils. "[L]egislative enactments cannot limit or restrict the power of succeeding boards.... "[T]he electorate . . . cannot bind the successors of the present board of supervisors by use of the initiative." Mueller, 221 Cal.App.2d at 324-25. Paragraph 7 prohibits any future Burbank City Council from seeking to modify any provision of Measure A without 2/3 voter approval, thereby binding all future City Councils to Measure A -- something neither the present City Council nor even the voters can do. Because these paragraphs of Measure A exceed the initiative power, they are declared to be illegal.


IV. THE COURT DECLARES THAT MEASURE A CONFLICTS WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

Any local provision that conflicts with statutes of statewide interest is invalid. Cal. Const. Art. XI, § 7, Morehart v. County of Santa Barbara, 7 Cal.4th 725, 747 (1994) ("Local legislation in conflict with general law is void."). This applies to local laws enacted by initiative. Committee of Seven Thousand, 45 Cal.3d at 50O. The California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code § 21000 et seq., is a comprehensive state law detailing how, and in what circumstances, public agencies must prepare an Environmental Impact Report ("EIR"). Accordingly, provisions of a local initiative that conflict with CEQA are void.

Paragraph 4(11) of Measure A prohibits the City from consenting to construction of "any new, rebuilt, relocated or expanded Airport facility, under any conditions or due to any circumstances" until the Airport prepares an Environmental Impact Report "for property it owns, leases or uses for Airport or Airport related purposes." The term "EnvironmentaI Impact Report" or EIR is not defined in Measure A, but is inferred to be the environmental analysis required by CEQA.

Under CEQA, not all projects require an EIR (or indeed any environmental analysis) because CEQA applies only to "discretionary projects proposed to be carried out or approved by public agencies." Cal. Pub. Res, Code § 21080. Even for such "public" projects, CEQA permits a "negative declaration" without preparation of an EIR based upon the predicted environmental consequences of the project. Cal. Pub. Res. Code §§ 21080.1, 21080.3 & 21080.4. In many cases, projects may be approved without an EIR if the requirements for a negative declaration are satisfied. Furthermore, CEQA describes a number of projects that are exempt from any CEQA analysis. Id. at § 21080(b).

Measure A v1olates each of these provisions by requiring the preparation of an EIR for any "acquisition or rezoning of any land for Airport use" or "financing or construction of any new, rebuilt, relocated or expanded Airport facility," regardless of whether the project at issue: (a) falls within the definition of a "project" under CEQA; (b) requires an "approval" within the meaning of CEQA; (c) would require only a Negative Declaration; or (d) would be exempt under the terms of CEQA.

CEQA further defines the geographic study area to be considered in an EIR as the "area that will be affected by a proposed project." Id. at §§ 21060.5 & 21151(b). Measure A requires the EIR to study all "property [the Airport] owns, leases or uses for Airport or Airport related purposes" even if such, property is greater or less than "the area that would be affected by the proposed project." That scope is wholly inconsistent with CEQA.

CEQA also requires that the EIR be prepared by the "lead agency," defined as the "public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment." Cal. Pub. Res. Code §§ 21100 & 21067. Measure A on the other hand, requires the "Airport" to prepare an EIR even if this entity is not the lead agency for the project. Indeed, since Measure A applies on its face to any "Airport use" including parking lots, hotels, car rental facilities and other properties that are neither on airport property nor operated by the Airport Authority, the Airport Authority would be required to prepare an EIR on projects that it neither sponsors nor acts as the regulatory agency. Because they conflict with CEQA, these provisions of Measure A are illegal.


V. THE COURT DECLARES PORTIONS OF MEASURE A TO BE UNCONSTITUTIONALLY VAGUE

A City is required to enforce its laws in accordance with due process. Cal. Const., art I, § 7. An ordinance that is so vague such that persons subject to it cannot reasonably understand how to modify their behavior so as to comply with that ordinance cannot be enforced in conformance with due process of law required under California Constitution, Article I, Section 7. City of Los Altos v. Barnes, 3 Cal.App.4th 1193, 1202 (1992). Although initiatives are to be liberally construed, a court interpreting a voter initiative must apply the same principles that govern statutory construction. People v. Rizo, 22 Cal.4th 681, 685 (2000); Citizens for Jobs, 94 Cal.App.4th at 1334-35.

The following provisions of Measure A are unconstitutionally vague:

A. Although the term "airport" is defined in Paragraph 1 of Measure A, the term is persistently used elsewhere in Measure A in a manner that is inconsistent with that definition. As defined in Measure A, the term "Airport" refers to a physical location or facility. Applying this definition, terms "Airport use" or "Airport facility" would include Airport Authority operated property, private property, and projects that serve an Airport-related function, such as: off-site airport parking, hangars or general aviation facilities, hotels, and car rental facilities. Notwithstanding this definition, the term "Airport" is used throughout Measure A in a manner that appears to refer to the entity that operates the Airport, the Airport Authority, not to the physical facility. The ambiguity in the use of this key term makes it impossible for the City to enforce Measure A without applying its own varying definitions and applications to the term "Airport" -- an interpretive act that the City is prohibited from engaging in.

B. The 12 conditions set forth in Paragraph 4 apply to all City actions requiring "consent." Although otherw1se a fairly simple term, the term "consent" in the context of land use review is unduly vague, leaving both City officials and permit applicants to guess when application of the conditions of Paragraph 4 are to be applied. There is no City process that speaks explicitly in terms of City "consent." Under zoning and other laws, the City approves a wide range of land-use applications. Measure A provides no basis to determine whether "consent," and therefore compliance with the 12 conditions of Paragraph 4, refers to discretionary approval, ministerial approval of building or other permits, or the mere failure formally to object to a project not otherwise subject to affirmative City regulation. Moreover, it cannot be determined whether City-initiated amendments to its land use laws constitutes "consent".

C. The requirement in Paragraph 4(11) that the "Environmental Impact Report" be "for property [the Airport] owns, leases or uses for Airport or Airport related purposes" is unenforceably vague because, under state law, an EIR analyzes the impacts of a particular" project, not a predefined land area. Measure A does not provide any guidance as to what must be analyzed with respect to land that is owned or used by the Airport when that land is neither the site of the proposed project nor impacted by the project.

D. The term "Master Plan" in Paragraph 4(i) of Measure A is unenforceably vague because it is impossible to determine from the plain language what the "Master Plan" must depict, the period of time it must cover or any other guidance as to the contents of such document. Although a capitalized term, it is not defined in Measure A and there is no single understanding of what a "Master Plan" must contain or depict. Indeed, the term "Master Plan" has different meanings in different legal contexts.

E. Paragraph 4(k) is unenforceably vague because it is impossible to determine the violations for which the Airport Authority is potentially liable. Assuming, based upon context, that use of the term "Airport" in Paragraph 4 is intended to apply to the Airport Authority (the entity) and not to the Airport as specifically defined in Measure A (the facility), Paragraph 4(k) imposes penalties on the Airport Authority for violations of "this initiative." The operative sections of Measure A, Paragraphs 3 and 4, bar certain actions of the City unless specific conditions are met. Measure A does not purport to restrict the actions of the Airport Authority. As written, Measure A could be understood to impose a fine on the Airport Authority if the City were to approve an Airport project without complying with Measure A's preconditions. It could also require the Airport Authority to pay a fine if the City failed to meet its various obligations under Paragraphs 5, 6 and 8 of Measure A. Because it is impossible to determine for what violations of Measure A the Airport Authority, the City or any other party, is potentially liable, this provision is unconstitutionally vague.

F. The requirement in Paragraph 4(e) that the Airport Authority obtain a legal "ban on operations by all aircraft not originally certificated as meeting FAR Part 36 Stage 3 noise limits" is unenforceably vague because it does not indicate which aircraft must be banned. This provision could require a ban on all jet aircraft that, at the time of manufacture of the airframe, were not certificated as meeting FAR Part 36 Stage 3 noise limits (i.e., Stage 2 jets that were retrofitted to meet Stage 3 requirements). Or it could require a ban of all jet aircraft whose engines were not originally certificated to meet that standard. Alternatively, the language could require the banning of all Stage 2 jets and all non-jet aircraft because non-jet aircraft are not generally certificated as meeting any Stage II noise limit under FAR Part 36. It is impossible to determine from the plain terms of Measure A which kinds of aircraft the Airport Authority, would have to ban pursuant to Paragraph 4(e).

In light of these facial ambiguities, it might be tempting for the Court to accept Nolan's suggestion at Paragraphs 7 and 8 of the Complaint in Intervention that Measure A has a more limited scope than its plain language suggests, and simply insert explanatory or qualifying provisions based on what it believes to be the most reasonable interpretation of these vague provisions. Under California law, however, such rewriting of the initiative is prohibited. See Metromedia, Inc. v. City of San Diego, 32 Cal.3d 180, 187 (1982) (quoting Blair v. Pitchess, 5 Cal.3d 258., 282 (1971):

There are limits, however, to the ability of a court to save a statute through judjicial construction. ... "'[This] court cannot . . . In the exercise of its power to interpret, rewrite the statute. If this court were to insert in the statute all or any of the ... qualifying provisions [required to render it constitutional], it would in no sense be interpreting the statute as written, but would be rewriting the statute in accord with the presumed legislative intent. That is a legislative and not a judicial function.'"
Just like the Court, the City lacks the power to rewrite the language of Measure A. Because Measure A contains numerous key provisions that are unduly vague, Measure A cannot be enforced by City Officials without violating due process requirements of the California Constitution. Cf. Citizens for Jobs, 94 Cal.App.4th at 1334-36 (finding provisions of an initiative that attempts to limit the ability of the public body to approve airport projects to be unconstitutionally vague).


VI. THE COURT DECLARES THAT MEASURE A IMPOSES CONDITIONS IN EXCESS OF THE CITY'S POLICE POWER IN VIOLATION OF THE CALIFORNIA CONSTITUTION

An initiative may not purport to enact laws or impose requirements that are beyond the police power of the City. Associated Home Builders v. City of Livermore, 18 Cal.3d 582, 604-10 (1976) (initiative power could not exceed city's inherent police powers); DeVita, 9 Cal.4th at 775 (same). In land-use matters, the police power is limited to actions that are related to a legitimate governmental interest in regulating the activity at issue. Santa Monica Beach Ltd. v. Superior Court, 19 Cal. 4th 952, 979-80 (1999) (rational relationship test defines scope of police power); Associated Home Builders, 18 Cal.3d at 604-10 (whether initiative exceeded the city's police power assessed by rational relationship test).

Measure A requires that the Airport Authority satisfy 12 enumerated conditions before the City may "consent to the acquisition or rezoning of any land for Airport use, [or] consent to the financing or construction of any new, rebuilt, relocated or expanded Airport facility, under any conditions or due to any circumstances. . . ." The 12 conditions are mandatory and apply to construction of any Airport facility, regardless of sponsorship or function. Accordingly, the Airport Authority would have to satisfy all 12 conditions in order for the City to consent to even those projects that bear no reasonable relationship to the 12 conditions.

As applied to most project applications subject to Measure A, imposition or many of the 12 conditions of Paragraph 4 of Measure A would be in excess of the City's police power, because the conditions are not reasonably related to a legitimate governmental interest in regulating the proposed parking lots. For example, the Parking Lot Application, on its face, proposes no increase in the number of Airport parking spaces and involves no increase in aircraft operations. Thus, approval of the Parking Lot Application will not necessarily lead to any increase in aircraft operations during any time of time day. Therefore, it does not advance any legitimate government interest to require the Airport Authority, as a condition of approval of the Parking Lot Application, to: (a) implement a mandatory curfew on all aircraft opcrations; (b) institute a program for sound insulation; or (c) agree not to lengthen runways to accommodate larger aircraft.

Requiring that an applicant satisfy certain conditions for the granting of land-use approvals is not per se illegal. Indeed, some or all of the preconditions set forth in Measure A may be reasonably related to legitimate interests of the City for certain projects that may be undertaken at the Airport. Since Paragraph 4 of Measure A imposes mandatory preconditions on any Airport-related project, without reserving for the City Council discretion as to when and how to apply such conditions or to conclude that the conditions are at least generally related to the project at issue, it is so overboard as to unconstitutionally interfere with the legitimate exercise of the City's police powers.


VIII. THE COURT DECLARES THAT NO REMAINING PROVISIONS OF MEASURE A MAY BE LEGALLY ENFORCED

Nolan alleges at Paragraph 10 of his Complaint in Intervention that any unconstitutional or illegal provisions of Measure A must be severed from the legal portions of Measure A, pursuant to the severance clause found in Section 9 of Measure A and that the legal portions must be enforced. The City agrees that it should enforce all provisions of Measure A which remain valid. The question is whether there is enough remaining of Measure A to be cogently and fairly enforced notwithstanding the severance clause.

The inclusion of a severability clause in an initiative does not guarantee that all provisions not specifically deemed to be illegal can or should be enforced. In reviewing the application of a severability clause in an initiative, the court in Alexander v. Mitchell, 119 Cal.App.2d 816, 829 (1953), first noted that "practically all of the many provisions of the ordinance [were] invalid." Id. The court then discussed the holding in Bennett v. Drullard, 27 Cal. App, 180, 187 (1915), in which, the court declared that the proposed ordinance could not be submitted without deletion because portions of it were void and that "their inclusion in the petition renders the entire petition void." The Alexander court held that "severability clauses do not apply to initiative ordinances where the void subjiect matter is an integral part of the ordinance to be submitted to the voters...." Id. at 830.

In further describing the application of a severability' clause, the California Supreme Court explained:

[A severability clause] plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether the remainder ... is complete in itself and w°uld have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of legislative intent . . . [and is not] so connected with the rest of the statute as to be inseparable . . . .
Gerken v. Fair Political Practices Commission, 6 Cal.4th 707, 714 (1993) (quoting Calfarm Ins. Co. v. Deukmejian, 48 Cal.3d 805, 821 (1989)). In order to be severable, a provision must be "grammatically, functionally, and volitionally, separable." Gerken, 6 Cal.4th at 714. To be "volitionally severable," a court must be able to determine that the electorate would have adopted the valid portions of the measure in the absence of the invalid portions:
The test is whether it can be said "vith confidence that the electorate's attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.
Id. at 714-15 (quoting People's Advocate, Inc. v. Superior Court, 181 Cal. App.3d 316, 332-33 (1986)).

As shown above, there are fatal flaws in Paragraphs 3, 4, 5, 6, 7 and 8 of Measure A. The remaining paragraphs include Paragraph I (which is merely definitional), Paragraph 2 (which sets forth certain classes of aircraft operations that are not subject to any of the terms of Measure A), and Paragraph 9, which is the severability clause. Thus, it appears that there are no active provisions left to enforce.

Additionally, as noted above, certain terms that permeate all of Measure A, such as "airport" and "consent", are unconstitutionally vague. Thus, the vagueness of these terms renders it virtually impossible to enforce any operative paragraph of Measure A.

Finally, the infirmity of certain key provisions appear on their own to render the entire initiative void. As the court found in Marblehead v. City of San Clemente, 226 Cal.App.3d 1504, 1510 (1991), in considering a provision such as Paragraph 8 of Measure A, which requires the City to conform all its laws to the innitiative, "since this defect affects the entire measure the initiative's severance clause cannot be used to save any part of it."


CONCLUSION

For the foregoing reasons, the Court grants the City's motion for summary judgment on all claims set forth in the City's First Amended Complaint and on all claims set forth in Nolan's prayer for judgment in his Complaint in Intervention. The court denies the Intervener's motion for Judgment on the Pleadings. The default judgment as against the Burbank-Glendale-Pasadena Airport Authority shall be entered pursuant to the previously issued Order to Show Cause. Counsel for City of Burbank shall submit a proposed judgment in accordance with this ruling within 10 days of the issuance of this order.


DATED: August 23, 2002.


______(signed)_______________

RICHARD MONTES
Judge of the Superior Court, Retired


Full text of Measure A