Loading...
HomeMy WebLinkAboutItem IApril 5, 2002 Mr. Jack Wagner Orange County Regional Airport Authority 11222 Acacia Parkway Garden Grove, California 92840 Dear Mr. Wagner, Forwarded is a certified copy of Resolution Number 4991 entitled "Entering into an Indemnity Agreement for Civil Action Challenging Measure W" adopted by the Seal Beach City Council at their regular meeting of March 25`", 2002. Forwarded also are two (2) copies of the Indemnity Agreement between the City of Seal Beach and the Airport Working Group of Orange County , Inc. executed on behalf of the City of Seal Beach. Please return one (1) copy of the Agreement once it has been signed by the Group. Thank you. very truly yours, Joanne M. Yen, City Clerk City of Seal Beach Encl. 1d9/ AGENDA REPORT �- 3 oz- DATE: March 25, 2002 TO: Honorable Mayor and City Council FROM: John B. Bahorski, City Manager p SUBJECT: Lawsuit Challenging Legality of Measure W SUMMARY OF REQUEST: That Council approve the proposed resolution joining with the Airport Working Group challenging Measure W and adopting the attached Indemnity Agreement without incurring any costs associated with the lawsuit. BACKGROUND: Seal Beach is a member of the Orange County Regional Airport Authority ( OCRAA) and has supported the conversion of MCAS El Toro into a commercial aviation facility. The City has also opposed the Orange County Central Park & Nature Preserve Initiative (Measure W) which was approved by a majority of Orange County voters on March 5`", 2002. A legal challenge to Measure W has been filed by the Airport Working Group and Citizens for Jobs and the Economy. OCRAA board bas voted to join this lawsuit as a plaintiff and is asking each of the member cities to consider joining as plaintiffs without incurring any costs, expenses, fees, obligations or liabilities associated with the City's participation in this civil action. Attached to this report is a resolution to join the lawsuit and an indemnity agreement with AWG to indemnify the City against any costs associated with the lawsuit. FISCAL IMPACT: No direct fiscal impact. Adopt Proposed Resolution No. to legally challenge Measure W and approve the Indemnity Agreement absolving the City of any costs/liabilities. Agenda Item L RESOLUTION NUMBER A RESOLUTION OF THE CITY OF SEAL BEACH ENTERING INTO AN INDEMNITY AGREEMENT FOR CIVIL ACTION CHALLENGING MEASURE W WHEREAS, the City of Seal Beach opposed the Orange County Central Park and Nature Preserve Initiative which appeared on the March 5, 2002 Orange County ballot as "Measure W;" and WHEREAS, a majority of City of Seal Beach voters apposed Measure W; and WHEREAS, on March 5, 2002, Measure W was approved by a majority of Orange County voters; and WHEREAS, the Airport Working Group of Orange County (AWG) desires to bring a civil action in the Superior Court ofthe State of California, County of Orange, challenging the lawfulness of Measure W and the electoral process which resulted in its passage. ( "Civil Action'); and WHEREAS, the Orange County Regional Airport Authority (OCRAA) took action at its March 13, 2002 Board meeting to appear as a named plaintiff, along with AWG and other plaintiffs, in the Civil Action; and WHEREAS, the City of Seal Beach is a member of OCRAA; and WHEREAS, the City of Seal Beach also desires to appear as a named plaintiff, along with AWG and other plaintiffs, in the Civil Action; and WHEREAS, AWG desires to include the City of Seal Beach as a named plaintiff, along with AWG and other plaintiffs, in the Civil Action; and WHEREAS, the City of Seal Beach does not wish to incur any costs, expenses, fees, obligations or liabilities in connection with, or arising out of City's participation in the Civil Action; and WHEREAS, AWG agrees to prepare and file, in the Superior Court of the State of California, County of Orange, a civil complaint, which will include City, along with AWG and other plaintiffs, as a named plaintifftherem, challenging the lawfulness of Measure W and the electoral process which resulted in its passage. ( "Complaint'); and WHEREAS, AWG agrees to and shall indemnify and save City, its officials, employees, and agents harmless from and against any and all liability, loss or damage, including but not limited to any and all claims, demands, actions, and causes of actions, including without limitation, expenses, costs, and attorneys' fees which AWG, its employees and agents may at any time sustain or incur by reason of City's participation in the Civil Action. NOW, THEREFORE BE IT RESOLVED that: The City of Seal Beach agrees to enter into an indemnity agreement with AWG regarding Civil Action challenging Measure W. AND, THEREFORE BE IT FURTHER RESOLVED that: The City of Seal Beach hereby directs the City Manager to take whatever action is necessary to include the City of Seal Beach as a named plaintiff, along with AWG, OCRAA and other plaintiffs, in the Civil Action challenging the legality of Measure W. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach on day of , 2002 by the following vote: AYES: Councilmembers NOES: Comcihnembers ABSENT: Comcilmembers Mayor ATTEST: Joanne M. You, City Clerk STATE OF CALIFORNIA) COUNTY OF ORANGE ) SS CITY OF SEAL BEACH ) I, Joanne M. You, City Clerk of Seal Beach, California, do hereby certify that the foregoing resolution is the original eopy of Resolution Number on file in the office of the City Clerk, passed, approved, and adopted by the City Council of the City of Seal Beach, at a regular meeting thereof held on the day of .2002. City Clerk 03 /1B /2002 13:20 714- 741 -5044 CITYMGR, SE 01 /P5 4,11 V 11712 Arada Parkwy I'�I (714) Garwn 7 Gm.• CA 93900 I County (7X)791 -SJ63 , Regional -4`/` FAx (]16) ]I150H ctrl 0 To: OCRAA Board Members From: Jack Wagner (714) 741 -5458 Fec Pages: .S Phone. Dal March 18, 2002 R.: Two Letters to Board of Supervisors CC: Urgent x For Reylew ❑ Please Comment ❑ Please Reply l7 Please Recycle • Comments: Attached ere copies of two letters that have been sent to the Chairman of the Orangc County Board of Supervisors urging the Board to stay the course, and not take any precipitous action until the lawsuit challenging Measure W is resolved. For your information. the lawsuit against Measure W is being filed today I will be providing each of you, and appropriate city staff personnel, with copies of an 'Indemnification Agreement" which will allow your City to join in the lawsuit and be completely indemnified. In addition I will work with you and your staff to asst in the proper language for council action to join the lawsuit. For now, please agendize for your next council meeting, action that your City Council will join in the lawsuit challenging the legality of Measure W. MAR -18 -2002 1247 714 741 5044 99% P.01 ,4,1 0 I CRAP MEMBER CRIES AnoMlm Buena Pak Cmla Mmo Cypress Garda. Grove In Hobro Los Alamilot Newport Booch Ploce.aa Seal Beach sta.lan Villa Pak wwnnirler Yorba Undo IXOFFICIO MEMBERS Cou.y of Orange O.C. Baurnu Camcil A r,o Working Group CITVMGR ORANGE. COUNTY REGIONAL. AIRPORT AUTHORITY 11222 Acacia Parkwoy Gorden Grove, CA 92640 (714) 7415367 )714) 7415044 Fox March 18, 2002 Supervisor Cynthia Coad Chair, Orange County Board of Supervisors County Hall of Administration 10 Civic Center Plaza Santa Ana, CA 92701 Dear Madam Chair: PAGE 02/05 The Orange County Regional Airport Authority ( OCRAA) is deeply appreciative of your support and efforts over the years to convert the former MCAS E1 Toro into a commercial aviation facility. While the results of the recent election were very disappointing in your personal case, and in the passage of Measure W, OCRAA nonetheless bas not abandoned hope for the conversion of El Toro into a commercial airport. We have noted that a recent newspaper article has aligned you with Supervisor Spitzer in supporting a new direction for how the County plans to use the land at El Toro. The article states that you and Supervisor Spitzer will ask the Board to consider a power shift at the Board meeting scheduled for March 19 by transferring the oversight of the redevelopment of El Toro from the LRA to the county's chief executive officer. OCRAA wishes to go on record to urge you and the Board of Supervisors to take no action that will prejudice the future use of the former MCAS El Toro as Orange County's principal commercial airport. OCRAA opposes any precipitous action by the Board, and the Department of the Navy, that would foreclose the option of converting El Toro into a commercial airport. A legal challenge to Measure W has been filed by the Airport Working Group and Citizens for Jobs and the Economy_ The OCRAA board of directors have voted unanimously to join this lawsuit as a plaintiff. In addition to OCRAA, each of our member cities are also consideiingjoining as plaintiffs. On Tuesday night, March 12, 2002, the city council of one of our member cities, Garden Grove, voted to join the lawsuit. Villa Park has placed this action on their next agenda as well. The challenge to Measure W has already found support in Superior Court and is worthy of yours as well. MAR -19 -2002 12:4G 714 741 5044 99z P,02 PAGE 03/05 Supervisor Cynthia Coad Page 2 March 14, 2002 In addition, a new initiative, The Reasonable Airport, Park and Nature Preserve Initiative, will be presented to the voters in November to maintain the commercial airport zoning established in 1994 by the passage of Measure A. The Reasonable Airport, Park and Nature Preserve initiative, has previously been referred to as the V Plan. It was developed by Charles E. Griffin, a retired Professional Aeronautical Engineer, and Robert E. McGowan, a retired United Airlines captain. Mr. McGowan is a Villa Park city council member and member of the OCRAA board of directors. This initiative facilitates the development of a modem, safe, and efficient airport at El Toro which protects the quality of life of all existing Orange County residents by utilizing wide, existing open space corridors composed primarily of publicly -owned Orange County Open Space Preserve for flight tracks in to and out of the airport. Please consider the analyses of voting results on Measure W. Voters in twenty-one of Orange County's thirty-four cities, representing two- thirds of the county population, and every member city in OCRAA, turned down Measure W by a 60% margin on average. These voters are your constituents and those of Supervisors Smith and Silva. Thev said "No" to Measure W. This tells OCRAA that most county residents do, in fact, want El Toro to be a commercial airport, just as they did in 1994 and 1996. If this is so, then why did Measure W pass? The answer is simple. Voter turnout. South county residents, convinced by ETRPA, and supported by Supervisors Spitzer and Wilson, were led to believe, wrongly, that the sky would fall if El Toro became a civil airport. So they turned out in droves. On the other hand, many north county residents saw the March 5 election as just another primary and didn't bother to vote. That made this election another example of the south county tail trying to wag the Orange County dog with another flawed Measure that will suffer the same fate as Measure P. OCRAA cannot understand why any responsible public official would categorically oppose a civil airport at El Toro. JWA may have a nice terminal named for one of your former colleagues but, it is by any measure a sub - standard, unsafe airport that mixes excessive general aviation and commercial jet operations. This 500 acre site with a single 5,700 foot runway for commercial jet operations is simply not capable of meeting Orange County's future air commerce demand. This is the county's last chance. Donn forget, you are the majority until January 2003, Don't do anything prior to the Navy's issuance of the Record of Decision (ROD). Sincerely, ORANGE COUNTYREGIONAL AIRPORT AUTHORITY Art Bloomer Brigadier General, U. S. Marine Corps (Ret) Executive Director cc: Supervisors Smith, Silva, Wilson and Spitzer MAR -18 -2002 1248 714 741 5044 98% P.03 -_T'r'SR A-- _4iri 5 AWG C11slinews a frr Jew4ap, Q 21, ■oe►aaemy � Nnn.I•n /l. On q..ni:nn Match IS, 2002 Honorable Cynthia Coed Supervisor, de District Hall of Administration Santa Aru4 CA 92701 Pear Cynthia: it's cot urAwsmindiog that co s,idastioa is befog given to reorganizing the county organlretloml structure so that the El Tote Local Redevelopment Authority (LRA) would go beck undo the office of the Chlef Executive Office (CEO) rather than operating as an independent agency reporting directly to the Board,. At this time, we do not agree with relocating the LIA for two very important policy reuoty: 1. While Moisture W prevailed, litigation mverding the initiative's validity wilt be Filed today, and litigation is also anticipated regarding relevant federal iuues. 7bmefa., it would seem prudent to delay my reorganization until 8nelty reenlp regarding reuses at El Toro. Clmly, that time has not arrived. The exleth* sinuenae does not pmcludc the planning process associated with non aviation retw from proceeding. 2. Regmdees of one's opinion an the muse at El Tom a record iesuc upon which we should all agree is that the present organizational muctum has superbly xrvsd the County. It has aaused to occur a high protle focus on the reuse of this critically Important property to all Orange Celmry citizenm. This centrally located property affects numerous cities, which heightens the concern of what actual develop meart oeoms at El Tom. Thw, a "laser beam" focus regarding what transpires at El Toro should be granted high visibility and not relegated to a leaver profile. TTd can best be assured try maintaining the present org s"Bliomal shecture. MPR -19 -2222 12:49 714 741 5244 3 9z P.94 Tlwtk you for the opporntrdty to "Press our viewpoint on this impor ra public policy issue affcoting all of Orange County, Sincasol tvice N President Citizens for Jobs and the Economy cc: Supervisor Silva Supervisor Smith Supervisor Spitzer 9upw sor Wilson Members, OCRAA MAR -18-2002 12:49 714 X- - I Tom Naughton President Airport working Group PAGE 05/05 FREDRIC D. WOOCHER (Bar No. 96689) MICHAEL J. STRUMWASSER (Bar No. 58413) STRUMWASSER & WOOCHER LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, California 90401 Telephone: ( 310) 576 -1233 im Facsile: (3 10) 319 -0156 BARBARA E. LICHMAN, PH.D (Bar No. 136489) CHEVALIER, ALLEN & LICHMAN, LLP 2603 Main Street, Ste. 1000 Irvine, California 92614 Telephone: (949) 474 -6967 Facsimile: (949) 474 -9606 Attorneys for Petitioners and Plaintiffs TOM NAUGHTON et al. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE TOM NAUGHTON; AIRPORT WORKING GROUP OF ORANGE COUNTY, INC.; ORANGE COUNTY REGIONAL AIRPORT AUTHORITY; CITY OF GARDEN GROVE; and CITIZENS FOR JOBS AND THE ECONOMY, Petitioners and Plaintiffs, V. BOARD OF SUPERVISORS FOR THE COUNTY OF ORANGE; COUNTY OF ORANGE; and DOES I -X, Respondents and Defendants. CASE NO. VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 10 11 12 13 14 15 16 PRINTED ON RECYCLED PAPER VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 10 11 12 13 14 15 16 Come now Petitioners and Plaintiffs Tom Naughton; Airport Working Group of Orange County, Inc.; Orange County Regional Airport Authority; City of Garden Grove; and Citizens for Jobs and the Economy, and allege as follows: PRINTED ON RECVcL PAFER VERIFIED PETRION FOR WRIT OF MANDATE AND COMPLAINT FOR INIUNC E AND DECWRATORY RELIEF INTRODUCTION 1. This Petition and Complaint challenges the validity of a ballot measure entitled "The Orange County Central Park and Nature Preserve Initiative," commonly referred to as Measure W, which was adopted by Orange County voters at the March 5, 2002, primary election. Measure W is a classic bait - and - switch: The initiative purports to amend the Orange County General Plan to create a vast "Central Park" at the former Marine Corps Air Station El Toro ( "MCAS El Toro" or "El Toro'j, with thousands of acres of open space, sports and recreation facilities, museums, libraries, arts and cultural attractions — all supposedly at absolutely no cost to the County's taxpayers. Yet in truth, Measure W permits extensive commercial and residential development on its supposed "open space," and the great "Central Park" it promised the voters will require millions of dollars of taxpayer funds if it is ever to become a reality. 2. Measure W is unconstitutional, void and unenforceable. Both federal and state law have expressly designated the Orange County Board of Supervisors to be the sole local entity responsible for planning and implementing the conversion and civilian reuse of the air base at MCAS El Toro. By purporting to dictate and limit how that former military property may be used upon transfer from the federal government, Measure W is beyond the power of the local electorate to enact by initiative because it unlawfully intrudes upon and interferes with the authority for planning the reuse of MCAS El Toro that has been exclusively delegated to the Board of Supervisors on a matter of statewide and federal concern. 3. Moreover, Measure W suffers from numerous substantive legal defects. The initiative's attempt to prohibit any aviation - related uses at El Toro is in direct contravention of the inclusion of the proposed El Toro airport in the 2001 Regional Aviation Plan adopted by the PETITION FOR WRrr OF MANDATE AND COMPLAINT FOR INRINcnvE AND DECLARATORY RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Southern California Association of Governments as a component of the federally mandated Regional Transportation Plan, as well as the El Toro airport's inclusion in the Federal Aviation Administration's National Plan for Integrated Airport Systems. As a result, Measure W's attempt to prohibit the development of a commercial airport at El Toro at this late date is both pre- empted by federal and state law, and constitutes an unconstitutional exercise of the County's police power because it does not reasonably relate to the welfare of the Southern California region and prevents Orange County from satisfying its fair share of fulfilling the regional air transportation needs. 4. Likewise, Measure W constitutes an invalid and unenforceable amendment of the Orange County General Plan. By state law, the County must create and maintain a general plan that is an "integrated, internally consistent and compatible statement of policies" for land use in 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 the County. The general plan must contain certain mandatory elements, including land use, open space, circulation, and resource and conservation elements, each of which must be consistent not only with state law but with all other elements of the county's general plan. By amending the Orange County General Plan to authorize substantial commercial, industrial and residential uses at El Toro while simultaneously characterizing those lands as "Open Space" in order to curry favor with the voters, Measure W both violates state law restrictions on the definition of "open space" and creates an internal inconsistency within the county's general plan. As such, Measure W is an unlawful and inconsistent general plan amendment that is invalid at the time it is passed. 5. Finally, Measure W is an unlawfully deceptive and deceitful initiative, containing false and misleading representations concerning the "contents, purport or effect" of the measure in violation of state election laws. Measure W not only falsely promises to preserve El Toro as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 "open space" and to create a vast "Central Park" on that property, but it falsely represents that this great new park can and will be created "at no cost to Change County taxpayers," in large part because (1) the former Marine Base at El Toro will supposedly be turned over to the County by the federal government without charge for public use as a park; (2) the Navy will assertedly assume all financial responsibility for cleaning up the toxic contamination on the El Toro property to the standards necessary to permit its use as a park rather than an airport; and (3) the revenues from the "interim" housing, commercial /industrial development, and agricultural uses permitted on the El Toro property will allegedly be sufficient to pay for the creation and maintenance of the Central Park contemplated by Measure W. In fact, none of these material representations is true; indeed, on the very day after Measure W's passage, the Navy announced that if El Toro were required to be reused as a Central Park pursuant to the initiative, the property 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 would not be transferred to the County for free, as claimed in Measure W, but would instead be disposed of by means of a public sale. 6. For these and the other reasons set forth below, Measure W is unconstitutional, invalid and unenforceable. Petitioners and Plaintiffs therefore request that a writ of mandate and injunction be issued prohibiting the enforcement and implementation of the initiative, and that judgment be issued declaring Measure W to be null and void. PARTIES 7. Petitioner and Plaintiff (hereinafter "Petitioner ")TOM NAUGHTON is a resident, taxpayer, and qualified elector of the County of Orange. Mr. Naughton is also President of the Airport Working Group of Orange County, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 8. Petitioner AIRPORT WORKING GROUP OF ORANGE COUNTY. INC. ( "AWG" ), is a nonprofit corporation organized pursuant to Internal Revenue Code section 501(c)(3) located in Newport Beach, California. AWG's purpose is to seek, educate the public concerning, and help to implement long -term solutions to Orange County's aviation demands, including by supporting the construction of a civilian airport at MCAS El Toro. 9. Petitioner ORANGE COUNTY REGIONAL AIRPORT AUTHORITY ( "OCRAA ") is a Joint Powers Authority comprising fourteen (14) cities in Orange County, California, that support a commercial aviation reuse for the former MCAS, El Toro, and oppose the expansion of John Wayne Airport as an alternative to the El Toro airport. The goal of OCRAA is to disseminate accurate information regarding the proposed commercial aviation reuse of El Toro. The Orange County cities that are presently members of OCRAA include: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Anaheim, Buena Park, Costa Mesa, Cypress, Garden Grove, La Habra, Los Alamitos, Newport Beach, Placentia, Seal Beach, Stanton, Villa Park, Westminster, and Yorba Linda 10. Petitioner CITY OF GARDEN GROVE is a municipal corporation, organized and existing as a general law city located in the County of Orange under the laws of the State of California. 11. Petitioner CITIZENS FOR JOBS AND THE ECONOMY ( "CJE ") is a nonprofit corporation organized pursuant to Internal Revenue Code section 501(c)(4) located in Costa Mesa, California. CIE supports a commercial aviation reuse of MCAS El Toro. 12. Respondent and Defendant (hereinafter "Respondent') BOARD OF SUPERVISORS FOR THE COUNTY OF ORANGE (`BOARD OF SUPERVISORS ") is the governing body of the County of Orange vested with various legislative, administrative, and 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 executive duties, functions and responsibilities under state and federal law. At all relevant times herein, the Board of Supervisors has been designated by the United States Department of Defense to be, and has been functioning as, the Local Redevelopment Authority ( "LRA ") for the conversion and reuse of MCAS El Toro. At all relevant times herein since 1996, the Board of Supervisors has likewise been designated by the California State Legislature to be, and has been functioning as, the single local reuse entity for MCAS El Toro. Among the duties and responsibilities of the Board of Supervisors is the obligation to comply with all state and federal laws regarding the limitations and restrictions imposed upon the exercise of the local initiative power, as well as the obligation to refrain from enforcing or implementing any local laws that conflict with superseding federal and state laws, including the Constitution and statutes of the United States and the State of California. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 13. Respondent COUNTY OF ORANGE ( "COUNTY ") is a political subdivision of the State of California, organized and existing as of the date of this Petition and Complaint as a general law county under the laws of the State of California. On March 5, 2001, the voters of Orange County adopted a proposed County Charter for the County of Orange, but on information and belief, said proposed charter has not as of the date of this Petition and Complaint been officially certified or filed with the Secretary of State for the State of California, and the proposed charter has therefore not yet taken effect. 14. Petitioners we unaware of the true names and capacities of Respondents DOES I- X, inclusive, and they are therefore sued by such fictitious names pursuant to Code of Civil Procedure section 474. Petitioners allege on information and belief that each such fictitiously named Respondent is responsible or liable in some manner for the events and happenings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 referred to herein, and Petitioners will seek leave to amend this Petition to allege their true names and capacities after the same have been ascertained. JURISDICTION AND VENUE 15. Jurisdiction for this action is proper in Orange County because Respondents reside in and are located in the County of Orange, and because Measure W was adopted in and, but for the intervention of the Court, would be implemented and enforced in the County of Orange. Nevertheless, because this action is brought by a city and local agency against the county in which the city and local agency are situated, Code of Civil Procedure section 394 mandates that this action be transferred to a county that is not a party hereto, or that the Judicial County assign a disinterested judge from a neutral county to hem this action and all proceedings in connection therewith. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 RELATED CASE 16. This action is related to a previous action entitled Citizens for Jobs and the Economy v. County of Orange, OCSC Case No. OOCC03205, which was assigned for all purposes to the Honorable S. James Otero of the Los Angeles County Superior Court. The Petition and Complaint in Citizens for Jobs and the Economy v. County of Orange challenged the validity of a prior initiative measure purporting to govern the reuse of MCAS El Toro as a civilian airport and involved many of the same parties, facts, and legal issues as the present Petition and Complaint. Judge Otero's summary judgment ruling invalidating that previous initiative measure was affirmed by the Court of Appeal in 4th Civ. Case No. D037543 under the name Citizens for Jobs and the Economy v. County of Orange (2002) 94 Cal.AppAth 1311. GENERAL ALLEGATIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Measure A and the MCAS El Toro Conversion and Reuse Planning Process 17. In September 1993, the U.S. Defense Base Closure and Realignment Commission recommended the closure of MCAS El Toro. The federal government's decision to close El Toro and to transfer the land with its existing improvements to the County of Orange provided the County with both the opportunity and the obligation to plan for the conversion and civilian reuse of the facility, which was scheduled for closure to be completed in mid -1999. 18. The military base conversion and reuse process is governed by a complex set of federal and state laws and regulations. Under both federal and state laws, however, a single local governmental entity is given the authority for developing and implementing a plan for the civilian reuse of a former military base. Specifically, the Defense Authorization Amendments and Base Closure and Realignment Act (10 U.S.C. § 2687 et seq.) provides for the designation of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 a single state or local governmental entity, denominated the Local Redevelopment Authority (LRA), to receive the property located at a closed military installation and to prepare a required Community Reuse Plan for the redevelopment of the installation. Both the choice of the LRA and the contents of the Community Reuse Plan most be approved by the Secretary of Defense in order for the former military base property to be transferred to the state or local entity. (10 U.S.C. § 2687 (P.L. No. 101 -510, § 2905(b)(4)(A) & (b)(7)(F)(i) and § 2910).) 19. In order to implement the federal law and to facilitate the transfer and reuse of former military base property and improvements in the most expeditious manner, the California Legislature in 1994 enacted two companion bills: AB 3759 (Stars. 1994, c. 1165) (also known as the "Military Base Reuse Authority Act ") and AB 3755 ( Stats. 1994, c. 1261). AB 3759 authorized local governments located within the boundaries of a military base designated for 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 closure to establish a joint authority (denominated a "military base reuse authority") to prepare, adopt, finance, and implement a plan for the future use and development of the territory occupied by the military base. The reuse authority was to be governed by a board consisting of one member from each county and city located within the territory of the military base, and the board was authorized by the Legislature to acquire and dispose of real property and facilities within the base; to plan, finance, and construct new facilities within that territory; and to levy assessments, special taxes, or development fees, and to issue bonds to finance those facilities in accordance with specified state statutes. (See Gov. Code, §§ 67800 - 67870.) AB 3755 set forth a procedure for establishing a single "local base reuse entity" for each military base closure in the state; formally appointed certain entities to serve as the local reuse entities for their respective bases; and directed that all state agencies recognize those entities as the single base reuse planning 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 authority for those bases and likewise encourage their recognition by the federal government as the entities responsible for base reuse planning and property transfers pursuant to federal law. (Gov. Code, §§ 65050- 65053.) 20. In March 1994, the El Toro Reuse Planning Authority (" ETRPA") was established and was designated by the state Legislature in AB 3755 to be the single local base reuse entity for MCAS El Toro, with the state- assigned responsibility to receive title to the federal property and to prepare, adopt, and maintain the official local plan for the reuse of the base in compliance with federal requirements. (See Stats. 1994, c. 1261, § 6; Gov. Code, §§ 67840, 67842.) ETRPA was initially comprised of representatives from the County of Orange and the Cities of Irvine and Lake Forest. 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 21. In November 1994, Orange County's voters adopted an initiative known as Measure A. Expressly finding that the "highest and best" civilian use for the El Toro airbase was as a commercial airport, Measure A amended the Orange County General Plan to require that a portion of the unincorporated lands within MCAS El Toro "shall be used for a publicly or privately owned and operated airport serving a substantial portion of the County's passenger and cargo air transportation needs." (Measure A, § l.I.) The remaining territory within the boundaries of the former air base were designated for uses compatible with a civilian airport, as detennined by the Board of Supervisors. (Id., § 2, Policy PF -2.) 22. Measure A was vigorously opposed by some residents in the communities immediately adjacent to El Toro, who did not want an airport "in their backyard." After losing the election, the cities of Irvine and Lake Forest not only challenged the validity of Measure A in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 court — unsuccessfully — but refused to participate in the planning process to convert El Toro to, a civilian airport. As a result, the Board of Supervisors voted in December 1994 to withdraw from ETRPA and to establish a new reuse planning organizational structure and process for El Toro that was not dependent upon receiving the cooperation of Irvine and Lake Forest through ETRPA. 23. In recognition of these developments, the Department of Defense formally designated the Orange County Board of Supervisors to be the Local Redevelopment Authority under the federal base closure process. Shortly thereafter, the state Legislature followed suit by amending Government Code section 65050(d) to rescind ETRPA's designation and to substitute the Orange County Board of Supervisors, as the LRA recognized by the Department of Defense, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 to be the state - authorized single local reuse entity for MCAS El Toro. (Stats. 1996, c. 546 (AB 37).) 24. The El Toro airport opponents, however, persisted in their efforts to torpedo the reuse planning process. In March 1996, they placed another initiative on the Orange County ballot, Measure S, that would have repealed Measure A, would have abolished the Citizens Advisory Commission, and would have required that any planned commercial airport use at MCAS El Toro first be ratified by a majority of the County's voters. Measure S was soundly defeated at the polls. 25. With the Board of Supervisors' responsibility to plan and carry out the reuse of El Toro now firmly established under federal and state laws, and with the voters having once more stated their view that the base should be developed into a civilian airport, the Board proceeded 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 with the planning process for the airport. In December 1996, the Board, sitting in its capacity as the federally- designated Local Redevelopment Authority, adopted and submitted to the Department of Defense a Community Reuse Plan calling for the development of a new commercial airport, a 1,000 -acre habitat preserve, and aviation - compatible institutional, educational, and commercial/office uses on the El Toro property. 26. Concurrent with the approval of the Community Reuse Plan in 1996, the Board directed the County staff to negotiate with the Department of Defense for the transfer of the real and personal property at MCAS El Toro to the County and to initiate a series of second -tier planning activities for the selected reuse alternative, including development of an Airport System Master Plan, a Base Transition Plan, an FAA - mandated Airport Layout Plan, various environmental studies and documentation, such as a second -tier EIR and a federal EIS, as well as I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 the drafting and negotiating of leases with the federal government for the interim civilian use of El Toro facilities. On October 23, 2001, after years of planning and coordination with the Navy and the Federal Aviation Administration, the Board of Supervisors approved and submitted to the federal government the Airport System Master Plan and the related detailed plans and environmental documentation (EIR 573) for the proposed uses and facilities at MCAS El Toro upon its transfer to the County for conversion and reuse as a commercial airport. 27. In the meantime, the South County opponents of the proposed civilian airport at El Toro continued in their efforts to derail the project. In 1999, they qualified for the March 7, 2000, ballot an initiative known as Measure F, which would have required that "no act by the County of Orange to approve any new or expanded jail, hazardous waste landfill, or civilian airport project shall be valid and effective unless also subsequently ratified by a two- thirds vote 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 of the voters voting at a County General Election." As one of Measure F's proponents later admitted, the inclusion of jails and hazardous waste landfills in the initiative was simply a ploy to attract votes from individuals who did not otherwise oppose an airport at El Tom, recognizing that voters from throughout the Count were unlikely to want one of these unpopular projects to be built in their own "backyards." The ploy worked, as Measure F passed by a substantial margin, but in Citizens for Jobs and the Economy v. County of Orange, supra, the Court of Appeal affirmed the Superior Court's writ of mandate and injunction against enforcement of Measure F, holding that the initiative was unlawful and invalid in at least "three major respects." (94 Cal.AppAth at p. 1324.) Measure W 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 28. With the invalidation of Measure F, the El Toro airport opponents went back to the drawing board once more in a desperate effort to come up with a means of preventing the Board of Supervisors and the federal government from proceeding with the transfer and conversion of MCAS El Toro into a civilian airport. This time they came up with the idea for Measure W, proposing to replace the Board of Supervisors' plans for a civilian airport at El Toro with their proposal for a vast park on the former military base property. Over the course of more than a year, the City of Irvine and ETRPA spent over $40 million in taxpayer funds to flood County voters' mailboxes with slick brochures and promotions for the so- called "Great Park," a grandiose plan for creating "America's greatest park" in the middle of Orange County, a park that would rival and exceed New York's Central Pak, San Diego's Balboa Park, Los Angeles' Griffith Park, and Golden Gate Park and the Presidia in San Francisco: Designed to appeal to 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 every conceivable taste and desire, the Great Park would supposedly include science and history museums, a veterans memorial and cemetery, picnic areas, a nature preserve, a "world- class" central library, performing arts facilities and a magnificent art and cultural center, a zoo, observatory, soccer fields, baseball fields, and a great 100 -acre lake and fountain in the center of the park that would provide water sports of all kinds. 29. In June 2001, the Great Park proposal was incorporated into a proposed initiative measure filed with the Orange County Registrar of Voters entitled "The Orange County Central Park and Nature Preserve Initiative," subsequently denominated as Measure W. As stated in its "Summary," Measure W: "[a]mends the General Plan of the County of Orange by repealing the aviation reuse designation for El Toro and other provisions enacted by Measure A in 1994; and [r]eplaces the aviation use designation with non- aviation designations to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ensure that the property will become a multi-use center for education, park, recreation, cultural and other public - oriented uses." (Measure W, § 2.J.) 30. The central feature of Measure W is a series of amendments to the Land Use Element of the County's General Plan, which are set forth in Section Four of the initiative and which are depicted graphically in Exhibit 10, the last page of the initiative. The existing General Plan divides the County's proposed land uses into Residential, Commercial, Employment, Public Facilities, Open Space, and Urban Activity Center categories. (General Plan, pp. III -8 to III -20.) The Open Space category, in turn, is divided into two sub - categories: the Open Space (5) land use category and the Open Space Reserve (OSR) land use overlay. The General Plan explains the difference between these two sub - categories: 10 11 12 13 14 15 16 "The Open Space (5) category indicates the current and near -term use of the land, most of which is zoned agricultural. It is not necessarily an indication of a long- term commitment to open space uses. "The Open Space Reserve (OSR) overlay identifies lands of scenic and natural attraction, and areas of ecological, cultural, historical and recreational significance that are permanently preserved as open space." (Id., p. III -18.) 31. Measure W makes two major changes to the Open Space category definitions and sub - categories. First, it weakens the county-wide protection provided in the General Plan for the Open Space Reserve overlay category by amending the above language as follows: "The Open Space Reserve (OSR) overlay identifies lands of scenic and natural attraction, and areas of ecological, cultural, historical and recreational significance that are permanently preserved as and restricted to open space and open space compatible uses." (Measure W, § 4.3.e (underscored language indicates additions to existing text).) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 32. Second, Measure W adds two new sub - categories within the Open Space land use category: the Nature Preserve (NP) and Education/Park Compatible (EPC) overlays, both of which apply only to portions of the unincorporated territory within MCAS El Toro. The initiative describes these new sub - categories as follows: "EDUCATION/PARK COMPATIBLE (EPC) "The Education/Park Compatible (EPC) overlay includes portions of El Toro for low intensity development compatible with adjacent Open Space Reserve (OSR) land uses. The EPC overlay allows educational facilities and supporting research and development and cultural and recreational uses. "NATURE PRESERVE (NP) "The Nature Preserve (NP) overlay applies to the area in the northeast portion of El Toro, shown on Map III -1, to remain in federal ownership, or subsequent local ownership, for the purpose of preserving natural habitat in accordance with the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Central/Coastal Orange County Natural Communities Conservation Plan." (Measure W, § 4.3.e.) 33. Measure W then categorizes all of the land within MCAS El Toro into one of these three overlay designations, with approximately 1,000 acres designated as Nature Preserve, more than 600 acres as Education/Park Compatible, and roughly 2,400 acres as Open Space Reserve. Recognizing the reality, however, that these are not the existing uses for most of the El Toro property and that the initiative provides neither a mechanism nor a timetable for providing the funding necessary to build any of the park or recreational facilities that it proposes for much of this territory, Measure W provides for what it calls "leasing opportunities at El Toro pending transition to park - compatible development." (Measure W, Table III -1, Open Space Reserve.) The "leasing opportunities" permitted in the Open Space Reserve overlay are virtually unlimited, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 `9ncluding but not limited to ... agriculture, plant nurseries, material recovery/recycling facilities, recreation, housing and employment." (]bid.) In short, notwithstanding their designations, anything except aviation - related activities are allowed in the Open Space Reserve and Education/Park Compatible areas for the indefinite future under Measure W. 34. Moreover, Measure W promises that the Central Park it proposes for El Toro can be built and maintained without any new taxes. In a "finding" entitled "No New Taxes," Measure W declares that "the military housing and commercial buildings on the site can produce enough revenue to cover the cost of creating one of America's greatest parks." (Measure W, § 2.I).) The official Fiscal Impact Statement for Measure W likewise told the voters that `[c]osts to the County would be further mitigated because: [t]he uses permitted by the measure will likely result in the transfer of the property by the Navy at no cost [and] [e]nvirunmental clean-up costs 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 will likely be home by the Nary." This latter point was especially critical, because the soil on the site is known to be highly contaminated, and construction of the Central Park will require massive excavation and movement of contaminated soils. 35. Measure W ultimately qualified for and appeared on the March 5, 2002, primary election ballot. Although the initiative was handily defeated by the voters in 21 of Orange County's 34 cities, high voter turnout and overwhelming support for the initiative in the South County cities in the immediate vicinity of El Tom carried Measure W to victory at the polls. The Orange County Board of Supervisors is scheduled to certify the results of the election by April 2, 2002, and in accordance with Elections Code section 9122, Measure W will go into effect 10 days thereafter, on or about April 12, 2002. FIRST CAUSE OF ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 (Writ of Mandate, Code of Civ. Proc. § 1085) 36. Petitioners reallege and incorporate by reference the allegations set forth in paragraphs 1 through 35 above. 37. Respondents Board of Supervisors and County of Orange have a clear, mandatory, and ministerial duty not to enforce or implement an initiative measure that is beyond the power of the electorate to adopt and that is substantively unconstitutional and invalid under federal and state law. 38. As residents, taxpayers, and qualified electors of Orange County, and as organizations specifically interested in and representing the interests of residents and taxpayers of Orange County who are specifically interested in the development and reuse of MCAS El Toro as a commercial airport, Petitioners have a direct and beneficial interest in the action herein 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 and in the faithful implementation and execution of the laws of the State of California and of the United States by their elected representatives. Petitioners bring this action as private attorneys general pursuant to Code of Civil Procedure § 1021.5 to vindicate their own interests and those of all of the taxpayers and citizens of the County of Orange in the proper implementation of the laws of this state and country. 39. Measure W is unconstitutional, invalid, and unenforceable, and beyond the power of the local electorate to enact by initiative, for at least the following reasons: a. Both federal and state law have expressly designated the Orange County Board of Supervisors to be the sole local entity responsible for planning and implementing the conversion and civilian reuse of the air base at MCAS El Toro. By purporting to dictate and limit how that former military property may be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 used upon transfer from the federal government, Measure W is beyond the power of the local electorate to enact by initiative because it unlawfully intrudes upon and interferes with the authority for planning the reuse of MCAS El Toro that has been exclusively delegated to the Board of Supervisors on a matter of statewide and federal concern. b. Measure W is also beyond the power of the local electorate to enact by initiative because it purports to control and supersede actions taken by the Orange County Board of Supervisors with regard to the conversion and civilian reuse of MCAS El Toro that are administrative or executive in nature, not legislative. For example, the Board of Supervisors' adoption of a Community Reuse Plan, Airport System Master Plan, and related enactments calling for the 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 conversion and reuse of MCAS El Toro as a commercial airport were not taken in the Board's legislative capacity as the governing body for the County of Orange, but in its administrative capacity as the federally- designated Local Redevelopment Agency and the state - designated local base reuse entity. Measure W's attempt to interfere with and prevent implementation of the plans adopted by the Board of Supervisors in those capacities for the conversion and civil aviation reuse of MCAS El Toro exceeds the initiative power of the local electorate. C. Substantively, Measure W's attempt to dictate the uses permitted on the former MCAS El Toro property, and specifically to prohibit the conversion and reuse of such property as a civilian airport, me preempted by and are inconsistent with federal and state law. The conversion and reuse of former 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 military bases is a matter of federal and statewide concern that may be preempted by supervening federal and state law. The federal and state governments have not only delegated exclusive authority for the planning and reuse of the former air base at MCAS El Toro to the Orange County Board of Supervisors, to the exclusion of the local electorate's exercise of the initiative and referendum power, but they have specifically endorsed and ratified the Board's plans for the civil aviation reuse of El Toro by including the proposed El Toro airport in the Federal Aviation Administration's National Plan for Integrated Airport Systems (NPIAS), as well as in the 2001 Regional Aviation Plan adopted by the Southern California Association of Governments as a component of the federally mandated Regional Transportation Plan. As a result, Measure W's attempt to prohibit the 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 development of a civilian airport at El Toro at this late date is preempted by and is inconsistent with controlling federal and state law. d. Measure W is also invalid and unenforceable because it attempts, by a county general plan amendment, to dictate the land uses for property held by or on behalf of the federal, state or county governments. The Orange County General Plan cannot dictate and govem the permissible land uses of property owned or held by the federal or state government; similarly, because Orange County owns and holds all of its property as an agent of the state, in trust for the people of the entire state, the land uses permitted on such property are not subject to restrictions imposed by the local county general plan. Accordingly, Measure W's attempt to prevent the transfer of the former military base at MCAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 El Toro to the County for conversion and reuse as a civilian airport to be owned and operated by the County is invalid and unenforceable. e. In addition, Measure W's attempt to prohibit the conversion and reuse of MCAS El Toro as a civilian airport constitutes an unconstitutional exercise of the County's police power because it does not reasonably relate to the welfare of the Southern California region and prevents Orange County from satisfying its fair share of fulfilling the regional air transportation needs. As established in the 2001 Regional Aviation Plan adopted by the Southern California Association of Governments, each county in the Southern California region has the obligation to meet its own air traffic needs where feasible, and Orange County's existing facilities serve and are capable of serving only a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 fraction of the county's residents' air transportation demands. By prohibiting any civil aviation reuse of MCAS El Toro, Measure W unconstitutionally prevents Orange County from meeting its "fair share" obligations and does not represent a reasonable accommodation of competing regional welfare considerations. f. Measure W likewise constitutes an invalid and unenforceable amendment of the Orange County General Plan. By state law, the County must create and maintain a general plan that is an "integrated, internally consistent and compatible statement of policies" for land use in the County. The general plan must contain certain mandatory elements, including land use, open space, circulation, and resource and conservation elements, each of which must be consistent not only with state law but with all other elements of the county's 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 general plan. By inter alia amending the Orange County General Plan to authorize substantial commercial, industrial and residential uses at El Toro — both on a permanent and supposedly "interim" basis — while simultaneously characterizing those lands as "Open Space" in order to curry favor with the voters, Measure W both violates state law restrictions on the definition of "open space" and creates an internal inconsistency within the county's general plan. For example, Measure W purports to immediately and permanently designate all of the unincorporated land within former MCAS El Toro for "open space uses," when in fact a careful reading of the initiative reveals both that (a) thousands of acres of land within the MCAS El Toro we designated for eventual -education/park compatible" development, which does not meet the definition of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 "open space" but which instead authorizes intensive private and public development on a scale comparable to that of regional commercial facilities; and (b) these and additional thousands of acres that are supposedly being set aside for a park and open space reserve will in fact for the foreseeable and indefinite future be permitted to be used for housing, commercial development, and even material recovery/recycling facilities. Indeed, not only does Measure W not designate and preserve all of the property at MCAS El Toro as "open space," but it actually amends the entire land -use element of the County General Plan to weaken its open -space protections, permitting undefined "compatible development' on over 120,000 acres of pristine land county-wide that is currently strictly and permanently preserved from any future development. As such, Measure W is an 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 unlawful and inconsistent general plan amendment that is invalid at the time it is passed. g. Measure W is also an unlawfully deceptive and deceitful initiative, containing intentionally false and misleading representations concerning the "contents, purport or effect" of the initiative in violation of the federal and state constitutions and election laws. This official misinformation — contained both in the text of the initiative itself and in the official election materials relating to the initiative's presentation to the voters, including in the Ballot Title and Summary, the Impartial Analysis, the Fiscal Analysis, and the Argument in Favor of Measure W — was so inaccurate and misleading, and so permeated the lawmaking process, as to prevent the voters from making an informed choice and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 thereby rendering the initiative invalid under the Elections Code and the Due Process Clauses of the federal and state constitutions. For example, the official election materials presented to the voters regarding Measure W not only falsely promised to preserve El Toro as "open space" and to create a vast "Central Park" on that property, but they falsely represented that this great new park could and would be created "at no cost to Orange County taxpayers," in large part because (1) the former Marine Base at El Toro will supposedly be turned over to the County by the federal government without charge for public use as a park; (2) the Navy will assertedly assume all financial responsibility for cleaning up the toxic contamination on the El Toro property to the standards necessary to permit its use as a park rather than an airport; and (3) the revenues from the "interim" housing, 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 oommercial/industrial development, and agricultural uses permitted on the El Toro property will allegedly be sufficient to pay for the creation and maintenance of the Central Park contemplated by Measure W. In reality, however, none of these material representations is true. The adverse impact on the fairness and legitimacy of the electoral process from these material misrepresentations in Measure W and in the official election materials relating to the initiative was further compounded by the erroneous and unconstitutional restrictions imposed upon the County's right to counter these false representations by disseminating true and accurate information to County voters regarding the proposed reuse alternatives for MCAS El Toro. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 h. Measure W embraces more than one subject, in violation of Article II, section 8(d), of the California Constitution. In order to satisfy the "single subject mile," there must be a reasonable and common sense relationship among the initiative's various components, in furtherance of a common purpose, and all of the measure's provisions must be reasonably germane to the general subject of the initiative, as reflected in the title and the field of legislation suggested by the title. Measure W violates the "single subject rule" because, despite its title as "The Orange County Central Park and Nature Preserve Initiative" and its stated purpose to "allow for the creation of one of America's greatest parks" (Measure W, § 2.13), the initiative incorporates and addresses many unrelated subjects that are not reasonably germane to that purpose, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 including inter alia: (1) permitting property defined as "open space" within the Central Park to be used for "landfills ... and low- intensity, high technology, industrial, research and development, office and educational uses and child care facilities" (id., § 4.3.e); (2) purporting to meet the County's need for, and acquisition of, additional educational facilities and to relieve County taxpayers of the burden of acquiring new sites for school facilities (id., § 2.G); (3) purporting to provide tax relief to County taxpayers by mandating that no new taxes shall be required for preservation of open space uses (id., § 2.D); and (4) purporting to address methods for meeting the County's regional air transportation demand by mandating reliance on out -of -County airports by Orange County's residents (id., § 2.I.2). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 i. Measure W is unconstitutionally vague because, even though the stated purpose of the initiative is to replace the civil aviation reuse designation for the MCAS El Toro property with an open space designation, the measure contains numerous ambiguous terns and provisions that directly contradict that purpose and that prevent people of common intelligence from ascertaining the true meaning of the initiative. For example, Measure W inter alia: (1) defines the Open Space (5) Category as providing for "limited land uses that do not require a commitment of significant urban infrastructure" (id., § 4.3.e) without defining the meaning of the term "significant urban infrastructure'; (2) provides that "certain property" within the Open Space Category is committed, through public or private ownership, to remain as open space, while `other property" may ultimately be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 developed "in other ways" (ibid.), without specifying which property will remain as open space, which property may be developed, and in what ways it may be developed; (3) provides that "long -range socioeconomic projections attempt to reflect anticipated urbanization consistent with regional population and employment projections and applicable city plans (ibid.), without defining the term "anticipated urbanization" or identifying which city's or cities' plans might be included in the anticipated urbanization; and (4) changes the definition of "Open Space Reserve" land, previously restricted only to open space uses by the General Plan, to now also include "open space compatible" uses (ibid.), without defining what uses are deemed to be "compatible" and whether these new uses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 will be permitted in all land designated as "Open Space Reserve" in Orange County or only to such OSR land on the MCAS El Toro property. 40. If not otherwise directed by this Court's issuance of the requested writ of mandate, Respondents will violate their ministerial duties under the federal and state constitutions and statutes as described above by enforcing and implementing Measure W despite its illegality and invalidity. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law in that no damages or other legal remedy can adequately compensate them for the irreparable hamr they will suffer from the unconstitutional and unlawful implementation and enforcement of Measure W. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 SECOND CAUSE OF ACTION (Injunctive Relief, Code of Civ. Proc. §§ 526 & 526a) 41. Petitioners reallege and incorporate by reference the allegations set forth in paragraphs 1 through 40 above. 42. Because Measure W is invalid and unenforceable, Petitioners are entitled to temporary, preliminary and permanent injunctive relief enjoining Respondents Board of Supervisors and County of Orange from implementing or enforcing Measure W. In the absence of this Court's injunction, Respondents will violate the federal and state constitutions and statutes as described above by enforcing and implementing Measure W despite its illegality and invalidity. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law in that no damages or other legal remedy can adequately compensate them for the irreparable 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 harm they will suffer from the unconstitutional and unlawful implementation and enforcement of Measure W. THIRD CAUSE OF ACTION (Declaratory Relief, Code of Civ. Proc. § 1060) 43. Petitioners reallege and incorporate by reference the allegations set forth in paragraphs Ithrough 42 above. 44. An actual controversy has arisen and now exists between Petitioners and Respondents concerning the validity of Measure W and Respondents' rights and duties with respect thereto. As set forth more fully above, Petitioners contend that Measure W is unconstitutional, invalid, and unenforceable for a number of reasons, and that Respondents have the obligation and duty under the laws of the United States and the State of California to refuse 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 to implement and enforce Measure W. Petitioners are informed and believe, and on that basis allege, that Respondents contend in all respects to the contrary and that they are obliged to implement and enforce the initiative. A judicial determination and declaration as to the legality and validity of Measure W is therefore necessary and appropriate in order to determine the respective rights and duties of the parties. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for judgment as follows: 1. On the First Cause of Action, that this Court issue its alternative and peremptory writs of mandate commanding Respondents Orange County Board of Supervisors and County of Orange not to implement or enforce Measure W; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 2. On the Second Cause of Action, that this Court issue temporary, preliminary, and permanent injunctions restraining Respondents Orange County Board of Supervisors and County of Orange from implementing or enforcing Measure W; 3. On the Third Cause of Action, that this Court issue its judgment declaring that Measure W is unconstitutional, invalid, and unenforceable in its entirety; 4. On each and every cause of action, that this Court grant Petitioners their costs, including out -of- pocket expenses and reasonable attorneys' fees; and 5. On each and every cause of action, that this Court grant such other, different or further relief as the Court may deem just and proper. to 12 13 14 15 16 Dated: March 18, 2002 STRUMWASSER & WOOCHER LLP Fredric D. Woocher Michael J. Strumwasser CHEVALIER, ALLEN & LICHMAN, LLP Barbara E. Lichman, Ph.D. m Fredric D. Woocher Attorneys for Petitioners and Plaintiffs Tom Naughton; Airport Working Group of Orange County, Inc.; Orange County Regional Airport Authority; City of Garden Grove; and Citizens for Jobs and the Economy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 VERIFICATION I, FREDRIC D. WOOCHER, declare: I am the attorney for Petitioners and Plaintiffs Tom Naughton; Airport Working Group of Orange County, Inc.; Orange County Regional Airport Authority; City of Garden Grove; and Citizens for Jobs and the Economy in this action. I make this verification for the reason that Petitioners and Plainfiffs me absent from the County in which I have my office. I have read the foregoing PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF. I am informed and believe that the contents thereof are true, and on that ground I allege that the matters stated therein are true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. to 11 12 13 14 15 16 Executed this rd day of March, 2002, at Santa Monica, California. Fredric D. Woocher