Orange County (California) Measure F Litigation

(In part from "El Toro Airport" website, copied Aug. 24, 2002)


In September 1993, the U.S. Defense Base Closure and Realignment Commission recommended closure of the Marine Corps Air Station ("MCAS") El Toro. The El Toro Reuse Planning Authority ("ETRPA") was formed and designated by the California Legislature to be the single reuse entity for the base. In November 1994 Orange County’s voters adopted Measure A, which amended the County of Orange’s General Plan to require that the base "shall be used for a publicly or privately owned and operated airport." The cities of Irvine and Lake Forest, members of the ETRPA, refused to cooperate with conversion of the base into an airport. Orange County withdrew from the ETRPA. The Department of Defense designated the Orange County Board of Supervisors as the Local Redevelopment Agency ("LRA") with respect to the base closure process.

In March 1996 Orange County voters defeated Measure S, which would have repealed Measure A. On December 11, 1996, the LRA adopted by resolution a community reuse plan for a civilian airport.

In March 2000 the Orange County voters adopted Measure F (the Safe and Healthy Communities Initiative), which, among other things, requires a two-thirds vote of the electorate on the approval of airport, jail, and hazardous waste landfill projects.

Several days later two lawsuits were filed against the measure.

One lawsuit, to invalidate the entire initiative, was filed by Citizens for Jobs and the Economy, Bruce Nestande, David Ellis, the City of Newport Beach and the Airport Working Group -– against the County of Orange as defendant.

A second lawsuit, to stay implementation of the spending limits imposed by the initiative, was filed by Orange County against Jeffrey Metzger, “official proponent”, by virtue of his having filed official documents at the Registrar of Voters on behalf of the campaign committee, Citizens for Safe and Healthy Communities.

The parties agreed to combine and move the cases out of Orange County and they were assigned to Los Angeles Superior Court Judge S. James Otero. ETRPA and Citizens for Safe and Healthy Communities (CSHC) sought to intervene for the defense, noting that the County was unlikely to mount a defense against the first suit. Eventually CSHC stepped aside in favor of ETRPA, which undertook the entire legal defense of both cases.

On May 4, Judge Otero temporarily allowed the County, which had stopped most El Toro related spending, to resume work pending his final ruling, stating that, “I am not permitting an airport to be built by my very limited and narrow ruling.”

Judge Otero Judge Otero delayed final ruling several times. On September 11, 2000, he held a public hearing and announced that his decision would be released within 90 days.

On December 1, 2000 the judge issued his ruling overturning the initiative. He noted that repeal of Measure A was a legal remedy for the people of Orange County. "Should the citizens of the County of Orange not wish to proceed with the building of an airport at the El Toro facility, they can seemingly accomplish this in a variety of ways including the passage of an initiative repealing Measure A."

Entry of the judge's official order was delayed for almost two months. The Newport Beach plaintiffs argued to recover their costs from the El Toro Reuse Planning authority and from Jeffrey Metzger, neither of whom had brought the suits. Arguments over this issue continued until Judge Otero finally ended the delaying move. He ordered that entitlement to costs and the amount, if any, will be determined at a a post-trial issue. Signing of the judges order then allowed ETRPA to file an appeal on January 26, 2001, with the Court of Appeal, Fourth District, in Santa Ana.

On March 8 the appeal was moved to the Fourth District Court of Appeals in San Diego (D037543). A request by ETRPA lawyers for an expedited ruling by September 2001 was denied.

On March 29, 2001, attorneys for ETRPA asked the Appeals Court to stay any county spending in violation of Measure F, including the $5 million that the pro-airport supervisors voted to give to the Orange County Regional Airport Authority (OCRAA). The court denied the request.

On November 1, 2001, attorneys for the initiative asked the Appeals Court to stay the effectiveness of the Board of Supervisors' October 23 vote to approve an Airport System Master Plan. Attorneys contend that the supervisors' vote must be subject to ratification by the voters under the terms of Measure F. The Court denied the stay request.

Oral arguments on the appeal were heard on December 14. On January 4, 2002, the Court of Appeals upheld the adverse ruling of the Superior Court. Review of the case was denied by the California Supreme Court.