1. because Measure W amends the orange county general plan, it is well within the initiative power.
1. Because Measure A Was Adopted By The Voters, The Voters Can Repeal It.

In 1994, the voters of Orange County enacted Measure A to amend their General Plan to require that an airport be built at El Toro. In successfully defending that initiative in ensuing litigation, pro-airport groups and cities, including four of the Petitioners in this case, repeatedly told the courts that the voters could amend a general plan by initiative to promote an airport at El Toro. The Court of Appeal agreed, holding that a general plan amendment determining the future civilian use of El Toro was a valid exercise of the initiative power. Int. RJN, Ex. 1 at 1. Similarly, when the County’s voters six years later enacted Measure F, pro-airport groups and cities, including two of the Petitioners in this case, again told the courts that although the County’s voters could not impose procedural requirements on the County’s implementation of Measure A, they could change the County’s underlying land-use policies by repealing Measure A directly. See p.6, supra.

Now that the county’s voters have done just that, however, Petitioners are singing a different tune. Now they contend—directly contradicting what they have repeatedly said since 1994—that the County’s voters cannot amend the general plan to repeal Measure A. Instead, according to Petitioners, only the Orange County Board of Supervisors—and not the Orange County electorate—can make decisions regarding land use policy for El Toro.

This is wrong twice over. Because the County’s voters had the power to enact Measure A in the first place, they likewise had the power to repeal it. "[I]t is the general rule that power to enact ordinances implies power, unless otherwise provided in the grant, to repeal them." Blotter v. Farrell, 42 Cal. 2d 804, 811 (1954) (citation omitted). This rule applies to initiatives enacted by the electorate. See Duran v. Cassidy, 28 Cal. App. 3d 574, 582 (1972) ("While an administrative decision is not subject to reversal by the initiative (or referendum), the people nevertheless have the right to propose legislation amending or repealing the previously established legislative policy, the same as the [city] council can do if it so desires"). Indeed, Measure A itself incorporates this rule, since it expressly states that it will remain in effect until "December 31, 2015, unless earlier . . . repealed by . . . a vote of the people." Pets’ RJN, Ex. 1, §5 (emphasis added). Thus, what the voters did in 1994 they could undo in 2002.

Conversely, the County’s Board of Supervisors—unlike the voters—has no power to repeal Measure A. Elections Code Section 9125 provides that no county initiative "adopted by the voters shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance." Measure A does not permit the Board to repeal it. Nor has the Legislature carved out an exception for Measure A from Elections Code 9125. Consequently, as Petitioner Airport Working Group told the Orange County Board of Supervisors after the passage of Measure F: "Because Measure A was enacted by initiative, it can only be rescinded by initiative." Int. RJN, Ex. 25 at 6.

Petitioners ignore this fundamental legal principle, but it is fatal to their "exclusive delegation" claim. The general plan is the "‘"constitution" for future development’ located at the top of ‘the hierarchy of local government law regulating land use.’" DeVita, 9 Cal. 4th at 773 (citations omitted). Consequently, any land use decisions made by the Orange County Board of Supervisors for the reuse of El Toro must be consistent with the Orange County General Plan. Indeed, when the Board of Supervisors after the passage of Measure F temporarily voted to consider non-airport alternatives for the base, Petitioners claimed that "the Board has a duty under [Measure A] to use El Toro for airport purposes," and threatened the Board with "liability for ‘wasteful’ expenditure of public funds . . . as well as damages," if the Board violated "that legal duty" by planning for a non-airport use of the base. Int. RJN, Ex. 25 at 1.

Petitioners’ "exclusive delegation" argument thus inevitably leads to a profoundly undemocratic result. If Measure A cannot be repealed by another initiative, neither the voters nor the Board could repeal Measure A. The voters could not repeal Measure A because, according to Petitioners, only the Board of Supervisors may plan the reuse of El Toro. The Board could not repeal Measure A because it is an initiative enacted by the voters that does not permit repeal by the Board. Pets’ RJN, Ex. 1, §2, Policy PF-4.

Consequently, unless its narrow provisions for amendment were met, under Petitioners’ view of the law Measure A must remain in effect until December 31, 2015. Pets’ RJN Ex. 1, §5. Until that date, the Orange County Board of Supervisors could not plan to use El Toro for anything other than an airport—regardless of what had changed in the interim, regardless of the will of Orange County’s voters, and—because of Elections Code Section 9125—regardless of the will of the Orange County Board of Supervisors. Nothing either the Board or the voters could do would repeal the pro-airport mandate that the voters adopted in 1994. Consequently, both the voters and the Board would be powerless to change the Measure A’s requirement that El Toro be used for a large commercial airport.

As we now show, nothing in state or federal law makes the initiative process a one-way street leading inexorably to the proposed El Toro airport. The County’s voters had the power to amend the general plan by adopting Measure A. They likewise had the power to amend the general plan by repealing Measure A and adopting Measure W. No provision of state law has taken this power away.

2. The County’s Voters May Amend The County’s General Plan By Initiative.

"Measure A amended the Orange County General Plan." Pet. ¶21. So does Measure W. Petitioners/Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Judgment on the Pleadings ("Pet. Mem.") 7 ("As stated in its ‘Summary,’ Measure W ‘[a]mends the General Plan of the County of Orange’"). Id. Indeed, Petitioners acknowledge that the "central feature of Measure W is a series of amendments to the Land Use Element of the County’s General Plan." Id. In addition, Measure W expressly repeals Measure A. Pets’ RJN, Ex. 3, §3.

Both Measure A and Measure W are valid under DeVita, 9 Cal. 4th 763. In that case, the Supreme Court held that "a county’s general plan can be amended by an initiative of the county’s electorate acting pursuant to article II, section 11 of the California constitution." Id. at 770. Indeed, even Petitioners concede that "[t]here is no question that, as a general matter, a county’s general plan is a legislative enactment that is subject to amendment by initiative." Pet. Mem. 12.

Accordingly, as the Court of Appeal held when it sustained Measure A, the County’s voters had the power to amend the County’s general plan in 1994, when they adopted that initiative. Int. RJN, Ex. 1. They similarly had the power to amend the County’s general plan this year, when they adopted Measure W. What’s sauce for the goose is sauce for the gander.

The electorate’s ability to amend the general plan necessarily gives it plenary power to determine which land uses are permissible and which are not. Indeed, "the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements." Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, 62 Cal. App. 4th 1332, 1336 (1998). Consequently, unless the Legislature has enacted a statute that removes the electorate’s power to amend the Orange County General Plan provisions that apply to El Toro, Measure W is a constitutional exercise of the electorate’s initiative power. Similarly, unless the Legislature has provided that the reuse of El Toro is not subject to applicable general plan restrictions, Measure W controls (like Measure A controlled) the permissible reuse of El Toro by the County.

3. The Legislature Has Neither Removed The Power Of The County’s Voters To Amend The County’s General Plan By Initiative To Limit The Permissible Use Of El Toro Nor Provided That The Reuse Of El Toro Is Exempt From The County’s General Plan.
1. To Overcome The Presumption In Favor Of The Initiative, Petitioners Must Show A "Clear Indication" That The Legislature Intended To Prevent The Voters Of Orange County From Amending The County’s General Plan To Limit The Permissible Use Of El Toro Or Otherwise Exempted El Toro From The Generally Applicable Requirements Of The Planning And Zoning Law.

In passing upon the validity of a measure adopted by the voters, California courts follow "the long-established rule of according extraordinarily broad deference to the electorate’s power to enact laws by initiative." Pala Band of Mission Indians v. Bd. of Supervisors, 54 Cal. App. 4th 565, 573-74 (1997). Indeed, the right of initiative is "one of the most precious rights of our democratic process." Associated Home Builders of the Greater East Bay v. City of Livermore, 18 Cal. 3d 582, 591 (1976). Accordingly, "the initiative power must be construed liberally so as to promote the democratic process established by inclusion of the initiative and the referendum in the Constitution." Rossi v. Brown, 9 Cal. 4th 688, 711 (1995) (citations omitted). Consequently, "all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears." Id. (citation omitted).

These principles apply with full force to claims that the Legislature has preempted the initiative by exclusively delegating decision-making power over a particular matter to the local governing body. Thus, in contending that the Legislature has barred the Orange County electorate from amending the County’s general plan, Petitioners must overcome "the basic presumption in favor of the electorate’s power of initiative and referendum." DeVita, 9 Cal. 4th at 786. Indeed, "[w]hen the Legislature enacts a statute pertaining to local government, it does so against the backdrop of the electorate’s right of local initiative, and the procedures it prescribes for the local governing body are presumed to parallel, rather than prohibit, the initiative process, absent clear indications to the contrary." Id. (emphasis added). Accordingly, even Petitioners concede that "there is a presumption in favor of the right of initiative." Pet. Mem. 12 (quoting CJE, 94 Cal. App. 4th at 1326).

Petitioners nevertheless contend, citing COST, 45 Cal. 3d 491, that the requisite "clear indication" of the Legislature’s intent to preclude the initiative must be found where (1) the Legislature refers in a statute to the "board of supervisors" or the "city council" and (2) the subject of the statute is a matter of statewide concern. Pet. Mem. 13. However, the Supreme Court subsequently explained in DeVita that its decision in COST "did not intend to prescribe a set of fixed rules for mechanically construing legislative intent." DeVita, 9 Cal. 4th at 777. As the Court stated, "we never suggested in COST that courts are to automatically infer that a statutory scheme restricts the power of initiative or referendum merely because some elements of statewide concern are present." Id. at 780-81. Instead, DeVita held that the initiative is not preempted unless "the state’s regulatory interests . . . are fundamentally incompatible with the exercise of the right of initiative or referendum, or otherwise reveal a legislative intent to exclusively delegate authority to the local governing body." Id.

Petitioners cannot make the necessary showing that the Legislature intended to preclude the electorate from adopting an initiative governing the reuse of El Toro. The state has never passed any statute that establishes a "regulatory interest" in building an airport at El Toro, much less an interest in forcing an airport on voters who no longer want it. To the contrary, the statute that the state has adopted specifically addressing the reuse of El Toro expressly preserves local autonomy and control. In short, the Legislature has neither precluded use of the initiative to amend Orange County’s general plan and thus regulate the reuse of El Toro nor exempted El Toro from the requirement that all land uses within the unincorporated areas of the County be consistent with that plan.

2. Petitioners Have Failed To Demonstrate A "Clear Indication" That The Legislature Intended Either To Prevent The Voters Of Orange County From Amending The County’s General Plan To Control The Reuse Of El Toro Or To Otherwise Exempt El Toro From Applicable General Plan Requirements.

While Petitioners mush them together, in fact there are two separate and distinct state statutes governing the reuse of federal military bases. As we shall now show, one of these statutes, AB 3759 or the "Military Base Reuse Authority Act," is wholly inapplicable to El Toro. As to the other statute, AB 3755, there is no "clear indication" in either its language or legislative history of an intent to preclude the initiative. Instead, there is abundant evidence of exactly the opposite—in particular, an express statement by the Legislature itself that the statute was not intended to "preempt local planning efforts." Gov’t Code §65050(b).

1. As Petitioners Have Previously Conceded, The Military Base Reuse Authority Act Does Not Apply To El Toro.

In arguing that the Legislature has exclusively delegated power over El Toro to the Orange County Board of Supervisors, and thus precluded use of the initiative to amend the Orange County General Plan provisions applicable to El Toro, Petitioners primarily rely on the Military Base Reuse Authority Act, Government Code Sections 67800-67870 ("MBRAA"). After citing numerous provisions of that statute (Pet. Mem. 15-16), Petitioners argue that "[t]hese statutory provisions could hardly be more indicative of the Legislature’s intent to delegate exclusive authority to the Board of Supervisors for all actions regarding the conversion and reuse of the former military base at El Toro—especially the authority to determine how that property should best be put to civilian reuse ‘in a way that provides maximum benefits to the communities of the area and the State of California.’" Id. at 16.

The MBRAA establishes a process under which local governments that have authority over portions of a closed military base may voluntarily join to create a "military base reuse authority." Once such an authority is created, it must then adopt an "official local plan for the reuse of the base for all public purposes." Gov’t Code §67840(a). "[E]ach county or city with territory occupied by the base" must then submit its general plan to the authority, and the authority then either certifies or refuses to certify the submitted plan as consistent with the authority’s own plan. Id. §§67840.1, 67840.2. Only if the authority certifies the local government’s general plan as consistent with its own "official local plan" may the local government then exercise land use authority over the base area. Id. Thus, the MBRAA establishes an elaborate statutory scheme pursuant to which the base reuse plan prepared by the military base reuse authority trumps inconsistent provisions of local general plans. As a result, if the MBRAA applied to this case, neither a local governing body nor a local electorate would be free to adopt a general plan amendment that was inconsistent with the "official local plan" prepared by the military base reuse authority in charge of El Toro.

But the MBRAA does not apply to El Toro, and Petitioners know it. Under Government Code Sections 67820(a), such an authority may be formed only "if two-thirds of the legislative bodies" of the cities and county which have the military base within their borders or (in the case of a city) within their spheres of influence "adopt resolutions calling for the formation of the authority." The Court can judicially notice that both Orange County and the City of Irvine have jurisdiction over portions of El Toro, and El Toro is also within Irvine’s sphere of influence. Int. RJN, Eckles Decl. ¶9. Hence, an authority could be created under the MBRAA for El Toro only if both the Orange County Board of Supervisors and the Irvine City Council had passed resolutions calling for the creation of such an entity. This has never happened. Id. at ¶10.

Petitioners themselves have already conceded that the MBRAA does not apply to El Toro. In the trial court in the Measure F litigation, Petitioners were forced to admit—after erroneously relying on the MBRAA in their trial court memoranda—that "the provisions that . . . deal with the El Toro airport are not part of the Military Base Reuse Authority Act . . . ." Int. RJN, Ex. 10 at C-18 ll.1-3. After being reminded of this concession, the Court of Appeal deleted any references to the MBRAA from its opinion in CJE. That Petitioners continue to rely on the MBRAA in this case is inexcusable.

2. While The Orange County Board Of Supervisors Is The "Single Local Reuse Entity" For El Toro Under Government Code Section 65050(d), That Statute Does Not Prevent The Voters Of Orange County From Amending The County’s General Plan By Initiative To Regulate The Reuse Of El Toro Or Otherwise Exempt El Toro From Applicable General Plan Requirements.

Although the two statutes were adopted contemporaneously in 1994, the military base reuse statute that does apply to El Toro (AB 3755 or Government Code Sections 65050-53) is quite different from the MBRAA (AB 3759). While a "military base reuse authority" created under the MBRAA can preempt local land use regulation, designation as the "single local reuse entity" under AB 3755 provides only limited powers. That statute requires all state agencies to recognize the designated entity "as the single base reuse planning authority for the base" (Gov’t Code §65051) and gives the entity the exclusive right to secure certain state benefits. Id. §65052. But that is the limit of the single reuse entity’s authority under state law. Unlike the MBRAA, AB 3755 contains no provisions that require a "single local reuse entity" to prepare an "official local plan" governing reuse of the base, no provisions that require other local governments to submit their own general plans to the "single local reuse entity," and—most important of all—no provisions that authorize a reuse plan prepared by a "single base reuse planning authority" to trump an otherwise inconsistent general plan.

These obvious differences between the MBRAA and AB 3755 speak volumes. "When a statute contains a particular provision, the omission of that provision from similar statutes on the same or a related subject reveals a different intent." City of Dublin v. County of Alameda, 14 Cal. App. 4th 264, 280 (1993) (applying principle and upholding local initiative power). Indeed, the Legislature’s decision to deny a "single local reuse entity" the power of a "military base reuse authority" was no accident. Military base reuse authorities were given preemptive power by the Legislature under the MBRAA only because their creation requires the consent of at least two-thirds of the local legislative bodies having jurisdiction over a base. See p.13, supra. Where a super-majority of affected local governmental bodies are in agreement on base reuse, the Legislature apparently thought it appropriate to prevent either the governing body or the voters of one of the affected jurisdictions from later amending its general plan in a manner that was inconsistent with the plan prepared by the military base reuse authority. But where such widespread consent did not exist—and it most assuredly has never existed for El Toro—the Legislature chose instead to create a "reuse structure that continues to give local base closure affected communities the primary responsibility for reuse and conversion of closing military bases, instead of creating a regional structure that controls reuse and conversion on behalf of local governments." Int. RJN, Ex. 15 at 11 (Enrolled Bill Rep. on AB 3759 (1994)).

But that is not all. Unlike the MBRAA, which expressly preempts contrary local general plans, AB 3755 expressly declares that "[i]t is not the intent of the Legislature in enacting this section to preempt local planning efforts." Gov’t Code §65050(b) (emphasis added). Under DeVita, these "local planning efforts" necessarily include the ability of the voters to amend a general plan by initiative. As the courts have recognized, "the Legislature conceives land-use planning as legislative action—part of the political process—and not as ‘something distinct from the local legislative function, to be performed by an apolitical planning commission.’" Pala, 54 Cal. App. 4th at 573 (quoting DeVita, 9 Cal. 4th at 773 n.3). Moreover, Section 65050, unlike the MBRAA, is part of the Planning and Zoning Law, which "recognizes unequivocally that planning is a legislative undertaking, and therefore . . . presumptively the proper subject of popular initiative." DeVita, 9 Cal. 4th at 773 n.3 (citation omitted). Thus, AB 3755, unlike the MBRAA, expressly presumes that whatever land use plans are made for a military base by "a single local reuse entity" shall be consistent with the applicable general plan—and under DeVita that general plan may be amended by either the governing body or the electorate.

The legislative history of AB 3755 explicitly confirms that it was never intended to preclude use of the initiative to determine the future use of El Toro. As noted above, as originally enacted, the statute named ETRPA as the "single local reuse base entity" for El Toro. Stats. 1994, ch. 1261, §6. Thus, ETRPA was the designated LRA when Measure A was adopted. If Petitioners were correct, however, this designation by the state would have prevented the voters of Orange County—a different entity than ETRPA—from amending the County’s general plan to require an airport at El Toro. In fact, however, Measure A is constitutional under DeVita, as Petitioners would be the first to admit. But if AB 3755 did not prevent the County’s voters from amending the general plan by adopting Measure A, the statute similarly cannot prevent the County’s voters from repealing Measure A by adopting Measure W.

After Measure A was approved by the Orange County electorate, AB 3755 was amended to delete the reference to ETRPA as the single local reuse entity for El Toro and to substitute in its place the "[l]ocal redevelopment authority recognized by the . . . Department of Defense, Office of Economic Adjustment." Stats. 1996, ch. 546, §1; Int. RJN, Ex. 18 at 2. But the Legislature’s decision to change the identity of the single local reuse entity for El Toro could not have changed the effect of the designation. To the contrary, as the Senate Local Government Committee’s analysis of the bill amending AB 3755 stated, the Legislature’s decision to change the identity of the single local reuse entity "does not promote or discourage any land use decision for the El Toro base," but "simply codifies in state law the same local reuse authority that the federal government recognizes." Int. RJN, Ex. 18 at 2. The Legislature thus intended to preserve the right of initiatives specifically with regard to El Toro.

As the federally designated "local redevelopment authority," the Orange County Board of Supervisors is the "single local reuse entity" for El Toro under Government Code Section 65050(d). But neither that statute nor any other statute gives a single local reuse entity the power to promulgate land use plans that are inconsistent with the applicable general plan. Consequently, there is no requirement that the Orange County General Plan conform to the "community reuse plan" adopted by the Board of Supervisors for El Toro in December 1996.

Instead, the law is exactly the opposite: like all its other plans and zoning ordinances, any reuse plan for El Toro prepared by the Orange County Board of Supervisors must conform to the Orange County General Plan. See p.9, supra. And when the Legislature wants to make an exception to this rule, it does so explicitly, as it did when it enacted the MBRAA. See p.13-14, supra. But it did not do so when it enacted or amended AB 3755. Instead, the Legislature affirmatively provided when that statute was first enacted that it was not intended "to preempt local planning efforts." Likewise, as noted above, the legislative history of the post-Measure A amendment to AB 3755 unambiguously indicates that the amendment—which substituted the LRA named by the Department of Defense for ETRPA as the "single local reuse entity"—was not intended "to promote or discourage any land use decision for the El Toro base."

Consequently, neither the original nor the amended version of AB 3755 supersedes the provisions of the Planning and Zoning Law that require all land uses approved by the County to conform to the County’s general plan. Hence, any reuse plan adopted for El Toro adopted by the Orange County Board of Supervisors must conform to Measure W—not the other way around, as Petitioners erroneously contend.

4. CJE Does Not Support Invalidating Measure W.

In addition to relying on the MBRAA and AB 3755, Petitioners claim that the Court of Appeal’s decision in CJE "confirms the invalidity of Measure W’s attempt to remove from the Board of Supervisors the decisionmaking authority over the civilian reuse of MCAS El Toro . . . ." Pet. Mem. 10 (citing CJE, 94 Cal. App. 4th at 1333). This argument ignores the fundamental difference between Measure W and the initiative (Measure F) invalidated in CJE, a difference that Petitioners themselves repeatedly relied on in the Measure F litigation.

As discussed in Part I(B), both Measure A and Measure W amended the Orange County General Plan. Measure F, however, did not. Instead of attempting to change the County’s land use policy regarding the proposed El Toro airport by repealing Measure A, Measure F attempted to impose what Petitioners in the Measure F litigation described as "new and insuperable procedural obstacles" on the Board’s implementation of the prior initiative. See p.6, supra. Thus, Measure F sought to require that any decision by the Board of Supervisors to approve an airport (or a jail or hazardous waste landfill) be (1) preceded by public hearings in every affected city within the County; and (2) ratified by a two-thirds vote of the County electorate.

The Court of Appeal’s opinion affirming the Superior Court’s judgment found Measure F unconstitutional in three respects: "It interferes with the essential government functions of fiscal planning and land use planning; it impermissibly interferes with administrative or executive acts; and it is unconstitutionally vague in its provisions . . . ." CJE, 94 Cal. App. 4th at 1324. These three holdings—carefully set forth in the Court of Appeal’s opinion—do not include a ruling that only the Orange County Board of Supervisors may make decisions regarding the reuse of El Toro. To the contrary, the first two of these holdings were based on the same distinction Petitioners had drawn in their briefs between a permissible general plan amendment such as Measure A and Measure F’s impermissible attempt to impose procedural restrictions on the implementation of the earlier initiative. See p.6, supra. Indeed, the CJE court explicitly acknowledged at the outset of its discussion that "both zoning ordinances and general plans are subject to amendment by initiative." CJE, 94 Cal. App. 4th at 1325 (emphasis added).

The Court of Appeal first held that "Measure F implicates and affects two essential governmental functions that were to take place pursuant to the approval of Measure A . . . land use planning and fiscal management." Id. at 1328. Thus, after noting that Measure F might require thirty-four public hearings on a single project, the court concluded:

The type of restrictions imposed by Measure F are significant constraints upon the ability of the Board to plan land use issues throughout the County. This type of measure is different from the one approved in DeVita, because it is not an act that directly amends the general plan or provides other substantive policy. Rather, it essentially imposes procedural hurdles upon the planning process. (Id. at 1329 (citation omitted))

The court then went on to explain that Measure F’s attempt to "impose[] procedural hurdles" on the planning contemplated by Measure A triggered scrutiny under COST:

This factor brings into play the authority of COST that the initiative power is subject to restriction if the statute or statutory scheme in question largely pertains to matters of statewide concern: "An intent to exclude ballot measures is more readily inferred if the statute addresses a matter of statewide concern rather than a purely municipal affair." Here, the planning of a regional civilian airport affects more than the County residents alone. (Id. at 1329-30 (citations omitted))

But the court did not go to hold that only the Board of Supervisors could make decisions regarding the reuse of El Toro. Instead, it reiterated Petitioners’ distinction between Measure F and general plan amendments. Thus, in rejecting the claim made by the defenders of Measure F that that initiative was similar to the ballot measures upheld in Pala, 54 Cal. App. 4th 565 (1997), and San Mateo County Coastal Landowners’ Ass’n v. County of San Mateo, 38 Cal. App. 4th 523 (1995), the court emphasized that these initiatives "made substantive amendments to land use provisions of a county’s general plan or equivalent, to implement affirmative policy statements." CJE, 94 Cal. App. 4th at 1330. Indeed, the Court of Appeal specifically quoted with approval the holding in San Mateo Coastal Landowners that "local governments have broad discretion to determine the content of their land use plans." Id. But the court held that this principle, and these cases, did not save Measure F, because that initiative did not change Orange County’s substantive land use policies by amending its general plan, but instead simply sought to frustrate implementation of Measure A:

Measure F, however, does not make such a substantive amendment, but rather seeks to impose procedural restrictions upon otherwise authorized planning activities. It therefore essentially restricts the Board from carrying out a legislative policy already set by the voters when they enacted Measure A, by placing substantial restrictions upon the acts necessary to approve, or even study, the subject projects, which include the airport that is the subject here. (Id. at 1330 (emphasis added))

The Court of Appeal’s holding that Measure F "impairs essential government functions" was thus premised on the distinction between a substantive amendment to a county’s general plan and Measure F’s improper attempt to circumscribe the Board of Supervisors’ discretion to implement Measure A.

The same distinction underlies the Court of Appeal’s second reason for holding Measure F invalid: that the initiative improperly attempted to control administrative, rather than legislative, action. Here, too, the court reiterated its view that Measure F improperly attempted to interfere with the Board of Supervisors’ implementation of Measure A. Indeed, the court’s opinion strongly implies that Measure F was constitutionally defective precisely because it sought to revise the legislative policies set forth in Measure A sotto voce, without telling the electorate "in plain language" that passage of the initiative would reverse the pro-airport policy of the prior measure:

Measure A[] declared certain legislative policy and directed that certain events should take place to implement that policy, as ways and means of carrying out the policy. Measure F, as approved, would not have sought to change this policy by its plain language, but rather would have changed the procedure and substance of the implementing decisions that were created by Measure A. In other words, Measure F would add layers of voter approval and hearing requirements to the implementing decisions anticipated by Measure A to be made by the Board. "In so doing, the proposed initiative is an effort to administratively negate the legislative purpose of [Measure A]." Here . . . there is no overt statement that the previous legislative policy declared by the prior initiative will be changed, but the manner in which Measure F would restrict the Board’s administrative discretion with voter approval requirements places the subject initiative "firmly within the administrative category of voter enactments, which are not permitted. As such, the proposed initiative is beyond the power of the voters to adopt.

* * * *

[Measure F] is mainly administrative in nature, by dictating how and what spending may take place on a matter in which a controlling . . . legislative policy has already been established. . . . The voter approval and spending restrictions contained in Measure F do not set new substantive land use policies, but instead make it difficult or impossible for the Board to carry out already established policy that the airport project should be fully investigated at least for planning purposes. (Id. at 1333-34 (emphases added))

Thus, the Court of Appeal’s holdings that Measure F impaired "essential government functions" and improperly sought to control administrative acts both rest on the obvious fact that Measure F attempted to frustrate Measure A procedurally rather than amending it substantively. Indeed, the court summarized its entire decision at the end of its opinion by stating that Measure F was an invalid "effort to administratively negate otherwise valid planning activities that have not yet been fully carried out pursuant to Measure A." Id. at 1336.

Nevertheless, Petitioners contend that the decision also stands for the principle that the electorate cannot repeal Measure A. Thus, Petitioners quote dicta from CJE that "there is a strong legislative indication that the [Orange County Board of Supervisors] has been delegated exclusive authority for all actions regarding planning for reuse of MCAS El Toro." Pet. Mem. 11 (quoting CJE, 94 Cal. App. 4th at 1333 (emphasis deleted)). But the passage quoted by Petitioners simply states that the voters could not require that future actions taken by the Board to implement Measure A be ratified by the electorate. Measure W requires no such ratification. Instead, it directly repeals Measure A’s substantive land use policies and sets forth the general plan designations with which any land use at El Toro must now comply.

Nothing in CJE suggests, much less holds, that Measure W is impermissible. To the contrary, as shown above, the CJE opinion repeatedly distinguishes between what the court obviously believed was Measure F’s procedural gimmickry and a straightforward amendment of the County’s general plan. See pp.18-21, supra. Indeed, under Petitioners’ theory, the CJE opinion would be internally inconsistent. For if the state’s designation of a single local reuse entity somehow prevented the voters from amending the Orange County General Plan to regulate the reuse of El Toro, the Orange County electorate could not have enacted Measure A, and the Court of Appeal could not have held in CJE that Measure F improperly interferes with the "established policy," enacted by Measure A, "that the airport project should be fully investigated at least for planning purposes." 94 Cal. App. 4th at 1334. Petitioners’ attempt to apply CJE’s language to an entirely different initiative thus violates the long-established "foundational principle that: ‘The language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’" Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1157 (1991) (quoting Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 734-35 (1989)).

When Petitioners successfully opposed review of CJE in the California Supreme Court, they also solemnly told the Court that "despite [ETRPA’s] efforts to make Measure F appear similar to other initiatives considered by courts in the past and potentially in the future"—i.e., initiatives that amend county general plans—"Measure F was and will likely remain sui generis." Int. RJN, Ex. 9 at 16. Petitioners also described Measure F as "unique and unprecedented." Id. These statements were made with full knowledge of Measure W—indeed, Petitioners’ Answer to Petition for Review was filed on the very same day that Measure W was approved by the Orange County electorate. Compare Int. RJN, Ex. 9 at 31-32 with Pets’ RJN Exs. 5 & 6. The Court of Appeal’s decision invalidating this "unique and unprecedented" initiative thus provides no support to Petitioners’ claim that a completely different initiative—Measure W—is invalid.

5. COST Does Not Support Invalidating Measure W.

DeVita’s focus on the Legislature’s "actual intent" is crucial. While the statute construed in COST was enacted "as a means of promoting a particular regional project" (Id. at 781), the Legislature has expressly declared that the only military base reuse authority statute that applies to El Toro was expressly intended not "to preempt local planning efforts," and its amendment after the passage of Measure A was similarly not intended to "promote or discourage any land use decision for the El Toro base." Consequently, in this case, unlike COST, the "clear indication" necessary to preclude use of the initiative does not exist. Instead, this case is governed by DeVita’s square holding that county general plans may be amended by initiative.

WD 082202/F-1170117/W2/1015420/v7 EL TORO REUSE PLANNING AUTHORITY