Future Airport Ruling Has Both Sides Buzzing

SAN DIEGO — Any day now, the 4th District Court of Appeal will issue a ruling that may leave stranded at the terminal the idea of a commercial airport ever being built at El Toro.

Or the ruling could have no effect whatsoever.

In the ongoing debate over the fate of the El Toro Marine Corps Air Station, the ultimate meaning of the ruling all depends on whose spin you believe.

Both sides claim defeat at the hands of the three-judge panel here would have little or no effect on their own goal--building an airport, or leaving it grounded on the tarmac of bad ideas.

At the same time, both say the judges’ ruling in their favor would represent a setback of staggering proportions for their opponents.

“Our side winning would put the county back to square one,” said Richard Jacobs, the San Francisco attorney who represents the plaintiffs, a coalition of South County cities led by Irvine and Lake Forest, which adjoin the Marine base.

“Our side winning would very, very substantially” slow down the steamroller effect of a commercial airport going in at El Toro, Jacobs said, and might have the effect of killing the idea altogether.

Hogwash, said San Francisco lawyer Clem Shute, who represents the pro-airport forces hoping to maintain the validity of Measure A, which Orange County voters narrowly approved in 1994 and which opened the door to potential construction of the airport.

“In a lot of ways, this has become very irrelevant,” said Shute, who noted that, last December, the county endorsed the concept of a commercial airport at El Toro, and remains the federally sanctioned agency in charge of masterminding a new use for the base, which is scheduled to close in 1999.

In other words, it’s irrelevant if the judges rule against the county, and “if we win,” Shute said, “it merely maintains the status quo.”

The judges heard oral arguments in March concerning the validity of Measure A.

The South County coalition urged the appeals judges to overturn a February 1996 decision by San Diego County Superior Court Judge Charles R. Hayes, who ruled that Measure A was “valid and lawful.”

Hayes noted that Measure A amended the county’s general plan to allow an airport, but did not mandate one, as opponents had argued.

The case has been litigated in San Diego because of possible conflict-of-interest concerns involving judges in Orange County.

Jacobs, the plaintiffs’ attorney, argued before Hayes and the appeal panel that Measure A “did not merely start a planning process--it determined that an airport be built at El Toro.”

He contends the issue should have gone before the Airport Land Use Commission, as required by the State Aeronautics Act, which would have allowed witnesses to argue its cons as well as its pros. He contends that a variety of state and local requirements were purposely omitted in “the rush to build an airport at El Toro.”

Michael S. Gatzke, the San Diego lawyer who represents Orange County, has told the judges that Measure A did not subvert the role of the Airport Land Use Commission or any other agency that would make planning decisions.

The appeal panel’s ruling “should go in our favor,” Gatzke said, “because we’re right on the law. Voters clearly have a right to do what they did. It doesn’t matter whether you agree with the merits of it or not.”

Gatzke echoed the words of his colleague, Shute, in saying that “the county adopted a community reuse plan for El Toro [last December]. And they were very explicit in their findings. They made a decision based on a host of considerations apart from Measure A, and they are the designated federal LRA [land reuse agency].”

In voting to endorse the idea of a commercial airport at El Toro once the military abandons the base, the Board of Supervisors triggered a separate lawsuit from eight South County cities, which contend that the county failed again to consider noise, traffic and pollution effects.

In a concession to South County residents living around the base, supervisors scaled back plans so that a commercial airport at El Toro would serve a maximum 25 million annual passengers, and said they would pursue a ban on night flight and take other steps to lessen the airport’s negative impacts.

Despite such concessions, the county appears committed to building the airport, scaled back or not. And in Gatzke’s view, even if Measure A is ruled invalid, “It would have no effect whatsoever on the decision made by the county in ’96 in adopting a community reuse plan.”

Airport opponents think otherwise.

Bill Kogerman, the executive director of Taxpayers for Responsible Planning and a staunch airport foe, believes the idea of a commercial airport at El Toro is already in danger and that a judicial defeat at this juncture would hurt his opponents tremendously.

“The folks who put together Measure A violated California law by not going through the appropriate legislative authority,” Kogerman said, referring to the Airport Land Use Commission.

“Do the pro-airport forces have the right to throw out a state mandate and do it their own way? I don’t think so,” Kogerman said.

A judges’ decision that benefits the anti-airport coalition will have the effect of “putting the issue back to square one,” in Kogerman’s view, because “the county’s process in this matter would be totally inconsistent with the general plan, absent the advent of Measure A.”

If the judges rule against the anti-airport forces, “We don’t miss a beat,” Kogerman said. “We don’t change one iota. We will continue to lobby and litigate this issue as fiercely as ever.”

But in Gatzke’s view, the emotion of airport opponents just isn’t an issue. The judges’ decision comes down to a strict interpretation of whether Measure A was lawful.

“Did the electorate act in an illegal way? No,” he said. “Whether it’s a good idea is open to question . . . but beside the point. Like it or not, that’s the way it is.”