It’s Orange County’s version of Ali vs. Frazier.
Michael S. Gatzke and Richard C. Jacobs are the two heavyweight attorneys fighting each other in the courts over whether there should be an airport at El Toro.
In the anti-airport corner is Jacobs, an expert on land use who fought environmentalists over the gnatcatcher and who won court decisions that helped build Orange County’s toll roads.
In the pro-airport corner is Gatzke, who’s been representing Orange County on aviation issues for 20 years. He crafted the 1988 agreement that allowed expansion of John Wayne Airport and he has won legal battles for San Diego’s Lindbergh Field.
The two have been squaring off for the past five years over El Toro, and each has earned more than $1 million in fees. Thus far, Gatzke has won most of the rounds, but Jacobs has landed some hard punches.
Now their focus is on the county’s 6,000-page environmental impact report, which was released Dec. 23. It’s a long-awaited sequel to an EIR initially released in 1996. And like that first one, this report is widely expected to be challenged in court. Both sides are gearing up.
“Rich is one of the best land-use lawyers in the state,” said Susan Withrow, chairwoman of the anti-airport El Toro Reuse Planning Authority, a coalition of eight South County cities opposed to the airport. “He is well versed in land-use law and he is a good trial lawyer. Those are two critical elements when you are fighting the big battle that we are fighting.”
“Mike is an excellent lawyer. There’s no way around that,” said Barbara Lichman, a lawyer for the pro-El Toro Airport Working Group. “Rich doesn’t have the long experience in aviation, and he’s at a distinct disadvantage.”
Gatzke, the senior partner in the Carlsbad firm of Gatzke, Dillon & Ballance, is the bulwark for the OC government. Nothing gets done without him signing off on it. He recently spent months going over the county’s EIR to make sure it stands up to legal scrutiny.
“I’m still trying to catch up on my sleep,” said Gatzke. “We know this will be as thoroughly litigated as any EIR will be. There’s not much doubt about that. They’re going to sue the county until the county’s eyes fall out.”
On the other hand, Jacobs said a decision to file a lawsuit over the newest EIR hasn’t been made and he didn’t even look at the EIR over the holidays. He acknowledged, though, that a court challenge is widely expected.
Challenge Could Slow Plans
Litigation brought by Jacobs and ETRPA is not itself expected to stop the airport at El Toro, but it could slow the planning process and give airport opponents time to erode the plan’s momentum and public support.
Airport opponents’ best shot at stopping the airport at a stroke is the Safe and Healthy Communities Initiative, which will be on the March ballot. That initiative would require an airport, a jail or a landfill to be supported by two-thirds of county voters before it could be built.
But even if the initiative passes, it’s certain to face a court challenge as airport proponents will argue that a third of the voters shouldn’t be able to stop what a majority wants. Jacobs will play a key role,after all, he wrote the initiative.
“I’ve been told that there are about 475 separate statutes in California that require a two-thirds vote,” said Jacobs, adding that the famous Prop. 13 is one of them.
Both lawyers carry resumes with significant legal accomplishments.
Jacobs, who graduated in 1971 from Boalt Hall School of Law at UC Berkeley, spent nearly 20 years in the state Attorney General’s Office, rising to the position of special assistant to the liberal Attorney General John Van de Kamp.
He was the state’s lead attorney for the California Coastal Commission for seven years, and represented other state agencies in cases involving land use, water rights and environmental issues; he’s written arguments that were made before the U.S. Supreme Court and he’s argued before the California Supreme Court.
In 1990, Jacobs joined the San Francisco-based firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, where he oversees 14 lawyers in the firm’s environmental land use department. The firm has 135 lawyers and plenty of blue-chip clients, such as Major League Baseball Properties and the Lone Cypress Co., which last year sold the Pebble Beach Co. to a group led by Peter Ueberroth, Clint Eastwood, Arnold Palmer and Richard Ferris for $820 million.
Jacobs’ background suggests a pro-business slant. As a counsel for the Building Industry Association of Northern California, he convinced a judge to throw out a voter-approved initiative to limit growth in Half Moon Bay, a small coastal town south of San Francisco.
Significant Victory
He represented the BIA against federal and state agencies trying to put the California gnatcatcher on endangered species lists. Jacobs, along with Rob Thorton, the managing partner of Nossaman Guthner Knox & Elliot and counsel for the Transportation Corridor Agencies, won significant victories preventing the listing. It was one piece of a larger legal battle that enabled the building of the OC toll roads over environmentalists’ objections. Jacobs said the gnatcatcher cases were his most significant victories.
While Jacobs’ previous representation was slanted definitely on a pro-growth side, he’s now on the anti-airport bandwagon, which in some circles, is seen as slow growth. He doesn’t think he’s gone to the slow-growth movement, saying “there’s a substantial portion of the business community that thinks having an airport in Orange County is the wrong thing to do.”
Jacobs first came onto the El Toro battle when he was hired by airport opponents to challenge the validity of Measure A, the successful 1994 ballot measure that approved planning for an airport at El Toro. A San Diego judge refused to overturn the measure.
Jacobs and ETRPA then went to court to challenge the county’s initial EIR, which was released in 1996. A San Diego judge granted ETRPA some of its arguments, but ETRPA didn’t win its main battle , to have the judge issue an injunction to stop the planning for an airport. In a 3-0 ruling by the Court of Appeals, ETRPA lost even further ground as the court rejected most of the lower court’s rulings. That ruling was a substantial victory for the county.
While Jacobs has snuck in some blows, he hasn’t won the big legal battles. More importantly, Jacobs is seen as the expert on land-use laws, while Gatzke is the expert on aviation issues. But the serious aviation issues haven’t yet gone to court,Gatzke has been winning on Jacobs’ turf.
“Litigation doesn’t typically stop a project,” acknowledged Jacobs. “What you hope is that you force the government to be honest about its impact and people find out about it and the project falls of its own weight.”
Gatzke and other airport proponents agree with that point.
“Their litigation strategy is ‘a project delayed is a project denied,’ ” said Gatzke. “They cannot use CEQA (the California Environmental Quality Act) to stop the project. But delay weakens the will and gives an opportunity to change minds.”
Lichman said ETRPA would have to find evidence that the airport would significantly violate the Clean Air and Clean Water acts.
“It’s a long shot to stop the airport (in court). The organization that does the EIR is given much deference by the court as the expert on the issue,” she said.
ETRPA officials acknowledge that their lawsuits are long shots. But Withrow said, “We’re not litigating for the hell of it. We believe we have a good case.”
Then she added what both sides would agree upon: “You cannot predict judges. I’ve seen cases that we thought were slam dunks and the judges turned around and ruled the other way.”
On the other hand, some believe the county’s strategy is a repeat of what happened at John Wayne: don’t give up anything right now, but wait for negotiations between the two sides to determine how El Toro actually looks. The endgame is an airport of some type.
Settlement Likely
Gatzke said a negotiated settlement is likely, but he’s willing to cut a deal now.
“The county has invited (South County leaders) privately at every level. South County will not even talk about it, because it’s not politically correct. They have to oppose it at every cost. When they realize they can no longer win in litigation, they’ll come to the table and settle,” said Gatzke.
While Gatzke is the expert on aviation law, he’s no slouch on land-use law. For example, Gatzke was the Orange County counsel who in the late 1980s successfully argued in favor of letting the Irvine Company develop 3,204 homes in upper Laguna Canyon.
Gatzke’s importance is such that ETRPA is trying to have him fired as the county’s counsel, by arguing that the Board of Supervisors needs four votes to retain an outside counsel. A court date on that challenge is scheduled for late February.
If ETRPA wins, the group could conceivably block the county from hiring any outside counsel on the airport since only three of the five board members support an airport. If that doesn’t seem particularly fair, “So what?” said Withrow. “We didn’t make the law. Why should the county be exempt from what other counties in the state must do?”
Workload Shift
Gatzke said that if ETRPA does win, he doesn’t expect to stop working on El Toro immediately, because he’ll appeal the decision. But if he eventually is ousted, he said, ETRPA’s strategy is to push the workload onto Lawrence Watson, the county’s in-house counsel.
“ETRPA would like to create an environment where the complex litigation would fall on the County Counsel’s Office. That’s a huge load to drop on his office,” said Gatzke.
Gatzke, a 1973 graduate of the UCLA law school, began representing Orange County on aviation matters in 1979. He also has represented the Unified Port District, which oversees San Diego’s Lindbergh Field. Gatzky won a 1988 case when a judge ruled that 1,500 property owners who live near the airport were not entitled to damages on their claim that excessive airport noise created a nuisance and lowered property values.
With two significant airport victories under his belt, Gatzke is prepared for the newest battle.
“The arguments that (El Toro airport opponents) are making are escalations of very traditional anti-airport arguments,” said Gatzke. “They’re the kind of arguments that I’ve been hearing since I began practicing law. Quality of life, noise issues. Those are traditional issues. I think the thing that makes El Toro difficult is the intensity.” n
The Big Three
To El Toro planners, they’ve become known as “the big three.” These are the issues in the latest EIR that are expected to have the biggest effects on neighboring communities: traffic, air quality and noise.
ETRPA and its attorney, Rich Jacobs, are expected to argue that the projected damage in these three areas will be greater than what the county’s EIR is portraying. The key point that ETRPA is looking for is whether the county’s projections show that the airport will violate the Clean Air Act and the Clean Water Act.
Thus far, county officials are not conceding that the airport will do so. In fact, the county’s EIR says that air quality would be better in Southern California as a whole with an airport at El Toro, because there would be fewer vehicles on the region’s freeways heading to Los Angeles International or Ontario International.
That the air quality would actually improve is a difficult scenario for those residents who will live near the proposed airport to believe. But Ron Ahlfeldt, senior VP at Orange-based P & D; Aviation, which is planning the airport, said, “We have the numbers to prove it.”
Polls have shown that traffic is one of the biggest concerns in the county. It’s the key reason that the county in 1998 decided to drop its plan for an ambitious corporate park at the side of the airport. By doing so, the EIR can say that airport would generate 176,000 vehicle trips per day, about half the traffic projected for the anti-airport Millennium Plan. A new Millennium Plan is being developed that would reduce traffic projections to a range similar to but still greater than those of the airport.
The noise created by an airport is another large issue. The newest EIR states that no homes will be within an area that would experience an average of 65 decibels or higher within a 24-hour period. El Toro planners say most other airports in the nation have hundreds if not thousands of homes within this 65-decibel contour. For example, John Wayne has 134 homes inside this contour while Los Angeles International has 31,335, Seattle has 13,620 and San Francisco has 1,360 homes within a 65-decibel contour.
However, it’s clear that some homes will be highly affected, such as those in Laguna Woods under the landing pattern, where the average noise from the airport is expected to be 63.4 decibels. There are 1,837 homes within the 60-to-65-decibel contour, compared to 682 homes in that contour around John Wayne Airport. When El Toro was an active Marine base in 1994, 4,723 homes were in this contour. That dropped to 672 by 1998 as the Marines prepared to leave.
The projected decibel levels are averages spread out over a 24-hour period, not the decibel reading of a plane flying by. The EIR didn’t estimate the peak decibel reading for some neighborhoods, but it’s expected to be from 75 decibels to 85 decibels in communities like Laguna Woods. Still, the decibel levels do not compare to the noise created by the military jets, which reached as high as 103 decibels in some neighborhoods, cutting off conversation.
The EIR acknowledged that as much as 2% of the South County population that can hear the planes will have their sleep affected. By the year 2020, the proposed airport could be handling 813 landings and takeoffs daily, with about 134 landings and takeoffs expected between 10 p.m. and 7 a.m.
The El Toro planning staff is not proposing an absolute nighttime curfew, because that would significantly reduce the amount of cargo that could be shipped. However, the staff is suggesting some mitigation measures, like prohibiting planes louder than 86 decibels at night, in effect eliminating large 747s during those hours.
Jacobs and county attorney Mike Gatzke agree these are the top three issues in the EIR. But Jacobs said he also expects to challenge the airport on aviation safety grounds, which is Gatzke’s strong suit.
Ironically, the legal debate to date has not focused on aviation, but whether the county’s EIR meets state and federal environmental requirements.
“We haven’t even gotten to the tough aviation issues,” said Gatzke.
