An initiative passed by Burbank voters that sought to restrict the expansion of Burbank Airport has been struck down by the Second District Court of Appeal.
The unanimous three-judge appellate panel ruled that the State Aeronautics Act gives legislative authority for airport expansions and relocations exclusively to City Councils and Boards of Supervisors, thereby prohibiting initiatives and referenda. The court also held that Burbank Airport expansion and relocation was a matter of "statewide concern" and therefore not subject to a local initiative.
The proposed expansion of Burbank Airport has been a source for ballot measures, litigation and other controversy since at least the 1980s (see CP&DR Local Watch, September 1999 and November 1997; CP&DR Public Development, June 1999; CP&DR Legal Digest, May 1998 and January 1993). Situated at the southeast end of the San Fernando Valley, the airport is surrounded by urban development and has virtually no buffer. But short runways, the close proximity of runways to the terminal, and a single, crowded terminal have caused the Burbank-Glendale-Pasadena Airport Authority — the three-city entity that owns and runs the airport — to look favorably on expansion.
At a special election in October 2001, Burbank voters approved Measure A. The initiative required the City Council to get two-thirds voter approval before approving "financing and/or construction of an airport terminal." The initiative further prohibited the city from approving any airport expansion, relocation or related measure unless 12 specific conditions were met. Among those conditions were flight curfews, caps on the numbers of flights and passengers, a ban on the noisiest aircraft, development of a master plan, and a ban on runway projects to accommodate larger airplanes. Measure A also directed the city to establish a city department to enforce the initiative, hire a consultant to monitor noise levels and amend all existing city laws to conform with the initiative. Amending Measure A required two-thirds voter approval.
A week after the election, the City of Burbank filed a lawsuit seeking to have the initiative declared illegal. Michael Nolan, one of Measure A’s primary proponents, defended the ballot measure.
In September 2002, Los Angeles Superior Court Judge Richard Montes ruled for the city on a number of grounds. Among other things, Montes found that state law prohibited the initiative, that the two-thirds vote requirement violated the California constitution, and that the subject matter was beyond the initiative power. Nolan appealed, and the Second District, Division Seven, upheld the lower court.
The appellate court looked closely at one section of the State Aeronautics Act, Public Resource Code § 21661.6, which specifies the procedural criteria for expanding an existing airport.
"Public Resources Code § 21661.6 specifically refers to the ‘board of supervisors’ and to the ‘city council’ as the governing bodies responsible for decisions regarding any expansion or enlargement of an existing public airport," Justice Earl Johnson Jr. wrote for the court. "Use of these specific terms rather than the generic terms of ‘governing body’ or ‘legislative body’ creates a strong inference the Legislature intended to preclude action regarding airport expansion or relocation by initiative or referendum."
The inference is strengthened further by the fact that the statute addresses a matter of statewide concern, wrote Johnson, noting the Legislature’s stated goals for a regional airport system proved the statewide importance. Thus, the state law precluded a municipal initiative, he court held.
In reaching the decision, the court cited Committee of Seven Thousand v. Superior Court, (1988) 45 Cal.3d, 491. In that case, the state Supreme Court threw out an initiative that sought to prohibit the City of Irvine from collecting development and bridge fees to funds highways because state legislation authorizing the fees specifically named the Board of Supervisors and city councils, and because construction of highways was a matter that went beyond municipal boundaries.
The court rejected Nolan’s contention that Measure A was merely a zoning ordinance, which would normally be subject to initiative or referendum. The court further rejected the argument that the City Council had ceded its authority to voters when in placed Measure B on the ballot in November 2000. That ballot measure prohibits airport expansion without voter approval. "The validity of Measure B was not before the trial court," Johnson wrote.
City of Burbank v. Burbank-Glendale-Pasadena Airport Authority, No. B162667, 03 C.D.O.S. 9934, 2003 DJDAR 12470. Filed November 19, 2003.
For the city: Dennis Barlow, city attorney, (818) 238-5700.
For Michael Nolan: Dennis Winston, Moskowitz, Brestoff, Winston & Blinderman, (310) 785-0550.