Airport Foes Regroup, Plan Next Line of Attack

IRVINE â€”  One day after the Orange County Board of Supervisors endorsed a plan to build a commercial airport at El Toro Marine Corps Air Station, opponents spent several hours behind closed doors Thursday mulling over potential legal challenges.

But experts said there may be little hope of victory.

If history is any indication, a lawsuit will mean the case will drag out in court, cost millions in legal fees--and ultimately fail to halt airport construction anyway, they said.

Judges are often deferential to the government entities behind such projects--be it a dam, a toll road or an airport, said Jody Freeman, an acting environmental law professor at UCLA. So while a case may be tied up in court for years, the developer typically prevails, she said.

“With these types of cases often you’ll get delay,� Freeman said. “Less often you get actual blocking of the project.�

A delay could win time for opponents to galvanize the community, introduce new ballot initiatives, negotiate for a less-offensive project, or even persuade those against the airport to run for public office.

But Anthony Willett, a spokesman for the Federal Aviation Administration in Washington, said the agency does not know of any case where a community ultimately succeeded in blocking the conversion of a military base to an airport by initiating legislation or filing a lawsuit.

Opponents will probably seek to challenge the validity of an environmental impact report that makes the airport possible.

On Wednesday, the Orange County Board of Supervisors endorsed the report and the development of an airport at El Toro when the military leaves the 4,700-acre base by mid-1999, despite fierce opposition from South County residents who live near the proposed airport and under its flight paths.

Part of the problem in mounting a successful legal challenge is that state environmental law rarely carries the power to kill a project outright, said Michael D. Fitts, a staff attorney for the Natural Resources Defense Council in Los Angeles.

Instead, the laws largely require the developer to fully disclosure a project’s problems in environmental impact reports. Even in cases where such information is overlooked, judges merely instruct the developer to make the changes to the report, they said.

“There is little chance of [a lawsuit] standing in its way,� Fitts said. And he ought to know. He tried to use environmental law in the years-long fight to block the San Joaquin Hills Transportation Corridor toll road that today, in his words, “has ripped the guts� out of once pristine open space in South County.

Despite many who doubt a successful legal challenge is possible, an attorney for South County cities gathered Thursday with city staffers and local activists behind closed doors to examine legal options. The meeting ended with a sense of optimism, officials said.

“I think there are some kinds of problems that could send the county back to square one on this project,� said San Francisco attorney Richard C. Jacobs, who represents the South County cities including Lake Forest, Irvine and Laguna Niguel.

“I would say chances are good, substantially more than 50%, that we can put a stop to this thing,� agreed former Irvine Mayor Larry Agran, head of the anti-airport group Project ‘99, one of the organizations involved in the afternoon meeting at Irvine City Hall.

The decision to file a lawsuit was launched even before the board vote, with the Irvine City Council decision Tuesday to pursue legal action.

By law, a challenge to the environmental impact report must be filed within 30 days of the supervisors’ vote. But it remains unclear when the first suit will be filed and what legal tack it will take.

Some of the more unusual suggestions discussed as part of a legal challenge include using federal protection for endangered species such as the gnatcatcher and other animals living at the end of one of the base’s existing east-bound runways. Nearly 1,000 acres at the end of that runway are being set aside as a habitat reserve.

Agran said he believes there is also a legal argument to be made that the county is unfairly infringing on the property rights of residents, who expect their home values to plummet if an international airport is built at El Toro.

Hal Roberts, a Portola Hills resident who lives directly under the proposed flight path, said he and his neighbors will demand that the county purchase their homes if an airport is built.

Roberts said other airports around the country have purchased homes in flight paths, including Los Angeles International Airport, which bought and demolished several homes in Playa del Rey 30 years ago.

“If they are going to add an airport, we want them to relocate us,� Roberts said. “They cannot expect us to live under the flight path. We deserve compensation.�

The driving force behind an airport at El Toro was Measure A, a ballot initiative Orange County voters narrowly passed in 1994 that changed the county’s master plan and allowed an airport to be developed. The measure was upheld in another public vote earlier this year.

South County cities challenged the validity of Measure A, but failed. An appeal is underway, and is expected to be decided next year, Jacobs said.

The environmental report approved by supervisors envisioned an airport serving 38.3 million passengers a year and rivaling Los Angeles International Airport for cargo service. Opponents said the report was faulty and underestimated noise, air pollution and traffic impacts.

In a concession to South County residents living around the base, supervisors scaled back a commercial airport at El Toro to 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.

Supervisors also want to keep open John Wayne Airport, and envision a two-airport system serving passenger and cargo needs if an El Toro Airport is built.

But South County opponents say the offer is hardly generous. They believe the supervisors will promise anything in their quest to build an airport at El Toro to satisfy business and tourism interests.

“If there was an airport at El Toro it would be just a matter of time before the Board of Supervisors authorized a new expansion,� Agran said. “They tout this as a concession, but it’s a charade.�

Far from a final decision, the Board of Supervisors’ vote moves forward a planning process that requires a new round of environmental reports and a future board vote before an airport at El Toro is a certainty.

Plans for the proposed project are being sent to the U.S. Department of the Navy on Saturday, via Federal Express, said county spokeswoman Kathleen Campini Chambers.

The Pentagon is expected to make a decision in a year on whether to give the county the surplus military property, although the conveyance of the land is expected.

Also contributing to this report was Times staff writer Shelby Grad.