PERRY M. ROSEN
PETER J. KIRSCH
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1333 New Hampshire Ave., N.W.
Washington, DC 20036
Telephone: (202) 887-4000
Facsimile: (202) 887-4288
GEOFFREY WILLIS, State Bar No. 126504
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
2029 Century Park East
Suite 2400
Los Angeles, CA 90067
Telephone: (310) 229-1000
Facsimile: (310) 229-1001

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF Los Angeles

1. INTRODUCTION

Through a series of lawsuits over the last five years, the Courts of this State, including the California Court of Appeal, have outlined the manner in which the City of Burbank ("City" or "Burbank") may regulate and control growth of the Burbank-Glendale-Pasadena Airport (the "Airport"), which is located primarily within the boundaries of Burbank. Pursuant to those decisions, the City has striven to accommodate reasonable and necessary projects at the Airport while vigilantly ensuring that such projects do not adversely affect the residents of Burbank, who already are significantly impacted by ongoing operations at the Airport.

On October 9, 2001, the voters of Burbank passed Measure A, a ballot initiative that purports to set forth specific and detailed directions to the Burbank City Council, City Manager, Director of Community Development and other City employees (collectively "City Officials") regarding how, when and under what circumstances the City can consent to acquisition, financing, zoning and construction at and around the Airport. Measure A also reserves for the voters a continuing role in the administration of City approvals of Airport and Airport-related projects. Although it is both the duty and intent of City Officials to fully enforce Measure A, it is the belief of City Officials that they cannot do so without violating prior decisions of California courts specific to Burbank and the Airport as well as specific California statutes and the California Constitution.

Because there presently are pending applications for City approval of various construction projects at, and in the immediate vicinity of, the Airport on which the City must act in the immediate future, City Officials face an immediate Hobson’s choice: (a) disapprove such applications on the basis of the requirements of Measure A, even though such requirements appear to be in direct conflict with the laws of California, or (b) ignore those portions of Measure A that are believed to be contrary to state law. Unfortunately, following either alternative would cause City Officials to act in direct violation of California statutes and the California Constitution and potentially subject the City (or even City Officials themselves) to civil liability. Additionally, application of Measure A to certain projects pending before the City may unnecessarily inhibit and delay projects that appear to be designed not to expand the Airport, per se, but rather to improve the margin of safety for the citizens of Burbank and the traveling public from known risks of aircraft hazards.

Accordingly, the City respectfully requests this Court to issue a ruling on the legality of Measure A or portions thereof, so as to determine the duties and responsibilities of City Officials with regard to whether, how and under what circumstances they are to enforce the provisions of Measure A.

2. FACTUAL ALLEGATIONS

Upon best information and belief, Plaintiff alleges and avers the following:

1. THE PARTIES
1. The City of Burbank is a municipal corporation organized and existing under and by virtue of the home rule provisions of the California Constitution, Article XI, Section 5, and the laws of the State of California, with plenary power over municipal affairs within its city limits.
2. The Burbank-Glendale-Pasadena Airport Authority ("Airport Authority") is a joint powers authority created by the Cities of Burbank, Glendale, and Pasadena pursuant to California Government Code § 6546.1 to operate the Burbank-Glendale-Pasadena Airport.
3. JURISDICTION AND VENUE
1. This Court has jurisdiction over this matter pursuant to California Constitution, Article VI, Section 10, and California Code of Civil Procedure § 1060.
2. Venue is proper in the Central District of Los Angeles County, pursuant to California Code of Civil Procedure §§ 394 and 395 and Los Angeles Superior Court Rule 2.0(c).
4. STATEMENT OF FACTS
1. THE AIRPORT
1. The Airport is located within the cities of Burbank and Los Angeles. The terminal, parking areas, and the majority of the runways and support areas are located within the boundaries of Burbank.
2. The Airport opened in 1930 and was owned and operated by the Lockheed Corporation between 1940 and 1976. In 1976, the Lockheed Corporation announced plans to close the Airport. In June 1977, the Cities of Burbank, Glendale and Pasadena formed the Airport Authority pursuant to the Joint Exercise of Powers Act, California Government Code § 6500 et seq., for the exclusive purpose of operating the Airport.
3. The Airport Authority was created through a Joint Exercise of Powers Agreement executed by the cities of Burbank, Glendale, and Pasadena. Today, the Airport Authority operates in accordance with the Amended and Restated Joint Exercise of Powers Agreement executed in September 1991 ("Joint Powers Agreement").
4. The Joint Powers Agreement provides that the Airport Authority is governed by the Burbank-Glendale-Pasadena Airport Commission ("Airport Commission"). Each of the three constituent cities appoints three commissioners to the Airport Commission, each of whom serves at the pleasure of the appointing City Council.
5. Notwithstanding the appointment of City of Burbank representatives to the Airport Commission and the location of the Airport primarily within Burbank’s boundaries, the City is not involved in the day-to-day management of the Airport. Subject to the terms of the Joint Powers Agreement and California law, the Airport Authority manages the operation of the Airport as a separate local agency.
6. Both the Joint Powers Agreement and the Joint Exercise of Powers Act place certain limitations on the manner in which the Airport Authority may operate the Airport. In acknowledgement of the proximity of homes to the Airport, Government Code § 6546.1, which authorized the creation of the Airport Authority, imposes, inter alia: a ceiling on the size of the area surrounding the Airport subject to a particular noise exposure level ("noise impact area"); an obligation that the Airport Authority pursue noise mitigation to the greatest extent reasonably possible; and prohibitions on lengthening the runways and acquiring residential property for Airport use.
2. BURBANK’S LAND-USE AUTHORITY OVER THE AIRPORT
1. Although the City of Burbank has no direct management role in the day-to-day operation of the Airport, it maintains land-use jurisdiction over Airport property, just as it does over all property located within the City.
2. The City has designated in the Burbank Zoning Code areas within the City where Airport and Airport-related uses are permitted and has provided for Airport and Airport-related development in the Burbank General Plan. The City reviews Airport and Airport-related projects to ensure consistency with the Zoning Code and General Plan.
3. The Airport Authority and others routinely seek grading, building, electrical, plumbing, and similar permits and other land-use approvals from the City for projects at and near the Airport. The City reviews all such requests to ensure consistency with applicable laws of the City, including building design, construction, and safety standards.
4. Although the issuance of building and similar permits does not involve discretionary decisions of the City Council, staff of the City’s Community Development Department may not issue building and related permits unless and until a determination is made that the project at issue is consistent with the building code and other requirements of local and state law. Accordingly, the City’s Community Development Department may not issue a building permit for Airport or Airport-related projects without determining that all applicable requirements of Measure A have been satisfied.
5. Pursuant to the Permit Streamlining Act, California Government Code §§ 65920-65963.1, determinations on the issuance of building and certain other permits must be made within 60 and 180 days, depending on the nature of the project.
6. In addition to permitting, zoning and other land-use authority over Airport or Airport-related projects within Burbank, the City has specific authority to approve the Airport Authority’s use of land that the Airport Authority seeks to acquire in the City for the purpose of expanding or enlarging the Airport. California Public Utilities Code § 21661.6 ("PUC § 21661.6"). Once the City approves the Airport Authority’s specific plan for use of property to be acquired, any proposed change in the approved use must also be approved by the City. PUC § 21661.6(e).
7. The City has adopted procedures for the review of applications submitted by the Airport Authority pursuant to PUC § 21661.6 (the "PUC § 21661.6 Procedures"). Those Procedures set forth a schedule for review of an application seeking approval of land acquisition by the Airport Authority with the goal of making a final decision within 90 days of the application being deemed complete.
8. The City’s approval authority under PUC § 21661.6 was challenged in court by the Airport Authority on the grounds that the City’s authority under that statute was either delegated to the Airport Commission or preempted by federal law. The Airport Authority’s arguments were rejected in a series of cases upholding Burbank’s land-use authority under PUC § 21661.6. See City of Burbank v. Burbank-Glendale-Pasadena Airport Authority, 72 Cal. App. 4th 366 (1999), review denied, 1999 Cal. LEXIS 5393 (Aug. 11, 1999).
9. The Airport Authority’s legal challenge to the City’s authority under PUC § 21661.6 arose in the context of plans by the Airport Authority to construct a new terminal, parking and related facilities on property adjacent to the Airport ("the B-6 Property") owned at the time by the Lockheed Corporation. Although the Airport Authority initiated and completed condemnation proceedings to acquire the B-6 Property, the City had rejected the Airport Authority’s plans for the use of the B-6 Property pursuant to PUC § 21661.6. That decision of the City was also challenged by the Airport Authority and affirmed by the courts. Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, No. ES004248 (L.A. Sup. Ct. March 11, 1998), aff’d, No. B123635 (Cal. App. May 5, 1999), review denied, 1999 Cal. LEXIS 5394 (Aug. 11, 1999).
10. After negotiations and further court proceedings, Burbank and the Airport Authority agreed to a process under which the Airport Authority could conclude the condemnation proceedings for the B-6 Property but not use that property for actual construction of any Airport facilities without further City approval pursuant to PUC § 21661.6. The B-6 Property was split into two parcels: (a) the "Adjacent Property," a small portion of the B-6 Property that is located adjacent to the existing runways upon which construction of facilities is significantly limited under Federal Aviation Administration ("FAA") guidance; and (b) the "Trust Property," a larger portion of the B-6 Property which could accommodate a terminal and related facilities.
11. Under the terms of a series of agreements entered into by the City and the Airport Authority in November 1999, the Airport Authority today owns the Adjacent Property but is prohibited from constructing virtually any facilities on such property without prior approval of the City pursuant to PUC § 21661.6. The Airport Authority does not own the Trust Property. The Airport Authority may only take title to the Trust Property after obtaining the City’s approval under, inter alia, PUC § 21661.6. If no such approval is granted, the Trust Property is to be sold to third parties for private development. The agreements as to the division of the B-6 Property and rights thereto are reflected both in deeds and related title transfer documents as well as in the Final Order of Condemnation entered in the Airport Authority’s condemnation action against the Lockheed Corporation. Burbank-Glendale-Pasadena Airport Authority v. Lockheed Corp., No. BC 155222 (L.A. Sup. Ct. Nov. 19, 1999).
3. THE INITIATIVE AT ISSUE: MEASURE A
1. On or about August 11, 2000, Mr. Howard Rothenbach, on behalf of the Committee to Restore Our Airport Rights ("ROAR"), submitted to the City Clerk a Notice of Intent to Circulate Petition. The City Attorney prepared a title and summary of the proposed measure ("Measure A"). On or about January 30, 2001, ROAR submitted a petition to the City Clerk that included approximately 10,700 signatures. On March 20, 2001, the City Clerk certified that the petition contained the number of qualified signatures necessary to require the City Council to act on the petition.
2. On or about April 17, 2001, the City Council ordered a special election to submit Measure A to the voters, which election was held by mail-in ballot and the votes tallied on October 9, 2001.
3. On the evening of October 9, 2001, the City Clerk announced that, based on the unofficial tally, Measure A had been approved by approximately fifty-eight percent (58%) of the voters submitting qualified ballots (11,096 in favor to 7,949 opposed). Pursuant to California Constitution, Article II, Section 10(a), Measure A became a law of the City on October 10, 2001.
4. Measure A provides in full as follows:

The people of the City of Burbank do ordain as follows:

1. For the purposes of this initiative "City" shall be defined as the City of Burbank, and "Airport" shall be defined as any airport located in whole or in part within the City. An "aircraft operation" is the takeoff or landing of an aircraft. The definition of other words in this initiative are those found in the Random House Webster’s College Dictionary, 1995 edition.
2. The terms and conditions of this initiative shall not apply to police, fire, military or emergency flights. Curfew violations need not apply to delays caused by inclement weather or mechanical emergencies incurred while in flight.
3. The City shall obtain the consent of the electorate, with a 2/3 affirmative vote, prior to the City’s final approval of the financing and/or construction of an airport terminal.
4. The City shall not consent to the acquisition or rezoning of any land for Airport use, nor consent to the financing or construction of any new, rebuilt, relocated or expanded Airport facility, under any conditions or due to any circumstances, unless and until the Airport has complied with all the following conditions:
1. The Airport has implemented a legally obtained, irrevocable, enforceable, and binding mandatory curfew on all aircraft operations and engine run-ups, either indoors or outdoors, between the hours of 10:00 PM and 7:00 AM.
2. The Airport has legally established the maximum annual number of aircraft operations, at the Airport, to be capped at no more than 10% above the number of aircraft operations at the Airport during the calendar year 2000.
3. The Airport has legally established the maximum annual number of aircraft passengers, at the Airport, to be capped at no more than 10% above the number of aircraft passengers at the Airport during the calendar year 2000.
4. The Airport has implemented rules to enforce the curfew and caps. Fines and other sanctions, including, but not limited to, prohibiting Airport use, shall be imposed on violators of the curfew and caps.
5. The Airport has implemented a legally obtained ban on operations by all aircraft not originally manufactured and certified as meeting FAR Part 36 Stage 3 noise limits.
6. The Airport shall have a program for sound insulation that includes providing the matching funds required for completion of the work.
7. The Airport shall not impose an Avigation Easement on property as a condition for sound insulation.
8. The Airport shall prepare and certify a new Environmental Impact Report for property it owns, leases or uses for Airport or Airport related purposes.
9. The Airport shall prepare a Master Plan for all Airport property, and obtain the City’s approval of the Master Plan.
10. The Airport agrees to not lengthen existing runways, add additional runways, or modify runways to accommodate heavier or larger aircraft.
11. The Airport has established a legal means to acquire the money and pay the City a fine of $5,000.00, adjusted annually for inflation, for each day of each violation of this initiative. The fine shall be paid within 30 days of the violation. The Airport shall pay all costs of enforcement and collection related to this provision.
12. The Airport agrees, to the maximum extent the law allows, to reimburse the City for lost property tax revenues, and for the Airport’s fair share of all costs related to infrastructure improvements and maintenance.

5. The City shall vigorously enforce all provisions of this initiative, as well as its rights under any Joint Powers Agreement. The City Council shall designate a City Department, whose duty it shall be, upon receiving written notice alleging a violation, to promptly investigate the complaint, and file reports with all appropriate authorities, so as to insure the Airport’s compliance with this initiative.

6. The City shall provide independent noise monitoring of aircraft activity in the City. If necessary, the City shall hire a consultant, competent in noise measurement, and whose expertise will provide the basis for enforcement of this initiative in Court.

7. This initiative shall not be modified, except by a 2/3 affirmative vote of the electorate at a regular Municipal election.

8. The City shall conform all applicable laws to this initiative. Until the City has done so, any laws that would be affected by this initiative shall be deemed to have been conformed so as not to be in conflict with this initiative or the 2/3 vote requirements of this initiative.

9. If any of the provisions of this initiative or the applicability of any provisions of this initiative to any person or circumstances shall be found to be unconstitutional or otherwise invalid, such finding shall not affect the remaining provisions or applications of this initiative to other persons or circumstances, and to that extent the provisions of this initiative are deemed to be severable.

4. CONCERNS REGARDING THE LEGALITY OF MEASURE A
1. On or about April 17, 2001, City staff presented the City Council with a Staff Report on the potential effects of Measure A as requested by Council in accordance with California Elections Code § 9212. The Staff Report indicated that the effects and costs of implementing Measure A likely would be significant but that such effects and costs could not be defined with specificity, in large part because of the vague and ambiguous wording of Measure A.
2. On or about April 16, 2001, the City Attorney sent a public memorandum to City Council informing the Council that Measure A contained certain terms and requirements that may be found to violate the California Constitution and state law if challenged. In summary, the City Attorney opined that Measure A may violate state and local law in some or all of the following respects:
1. The requirement that certain approvals of Airport projects be approved by 2/3 of the electorate and that certain other actions be subjected to 2/3 approval of the voters conflicts with the California Constitution, which declares that matters that are properly the subject of initiative or referendum are subject to a simple majority vote.
2. The requirement that an Environmental Impact Report be prepared for all land the Airport owns, leases or uses conflicts with state law, most specifically CEQA. California Environmental Quality Act, Cal. Pub. Res. Code § 21000 et seq. ("CEQA").
3. A number of provisions attempt to legislate how the City is to conduct administrative acts, which cannot properly be the subject of an initiative.
4. The requirement for voter affirmation of certain land-use approvals interferes with duties that the California Court of Appeal already has ruled must be exercised by the City Council and cannot legally be delegated to others (including the voters).
5. Certain requirements impermissibly seek to bind the actions of future City Councils with regard to future legislation and particularly with regard to the enactment of laws that could be characterized as amendments of provisions of Measure A.
6. Provisions that make it difficult, if not impossible, for the City to understand how and when to enforce such provisions and hence make Measure A unconstitutionally vague.

These potential legal infirmities were noted by the City Attorney in the Impartial Analysis for Measure A, issued in or around April, 2001.

3. On or about December 1, 2000, the Superior Court of Los Angeles, Honorable S. James Otero, issued an opinion addressing the legality of an initiative approved by the voters of Orange County ("Measure F") similar in many respects to Measure A. Citizens for Jobs and Economy v. Metzger, No. 00CC03205 (L.A. Sup. Ct. Dec. 1, 2000), appeal pending, No. D037543 (Cal. App. 4th Dist. Filed Jan. 26, 2001). Measure F, which dealt with the proposed conversion of El Toro Air Force Base to a commercial airport, calls for a 2/3 vote of the electorate for the approval of any commercial airport within Orange County and enumerates a series of conditions that must be satisfied before Orange County may take any act to approve a commercial airport. Judge Otero found Measure F to violate California law because, inter alia, it: (a) contains a number of terms, including the requirement that the County take "no act to . . . approve" airport projects without satisfying certain conditions, that render it unconstitutionally vague, thereby rendering the entire Measure invalid; (b) unlawfully usurps the authority granted exclusively to the County Supervisors under PUC § 21661.6; (c) purports to cover administrative acts, which cannot be governed by initiative; and (d) is otherwise in conflict with state and local law.
5. PENDING PROJECTS AND THE IMPLEMENTATION OF MEASURE A
1. The Airport Authority regularly seeks approval from the City for projects that are or may be subject to Measure A. Within the past month, for example, the Airport Authority has requested and received permits for three small projects at the Airport: (1) installation of self-service check-in kiosks in Terminal B, (2) relocation of interior walls to create new office space and the relocation of security gates, and (3) the construction of an outdoor canopy near the Terminal A baggage claim area.
2. There presently are, or soon will be, a number of requests pending before the City for permits or other approvals for Airport projects or Airport-related projects that are or may be subject to Measure A. These include the following:

Project Sponsor	Project	Application Received?	City Approval Required
Airport Authority	Relocation of Airport Parking Lots A & B	Yes	Applications for PUC § 21661.6 approval and Conditional Use Permit
Airport Authority	Relocation of Desmond’s trailer storage lot	Yes	Applications for PUC § 21661.6 approval and Conditional Use Permit
Zelman Partners	Construction of surface parking lot adjacent to Airport	Yes	Applications for Building and other Permits
City of Burbank	Comprehensive rezoning of Airport and vicinity	N/A	Legislative approval
Airport Authority	Construction of structured parking on Airport Parking Lot C	No	Building and other Permits (other approvals may be necessary based on final proposal)
AmeriFlight/ B&K	Installation of upgraded electric service panel	Yes	Electrical Permit
Superior Awning	Eight new awnings on the Airport terminal on behalf of the Airport Authority	Yes	Building Permits
Airport Authority	Construction of engineered material arresting systems	No	Building and related Permits may be needed
Delmac Construction and Development	Airport terminal improvements	No	Building and related Permits
Airport Authority	Construction of Airport parking lot on Airport property; relocation and related demolition of existing hangar	No	Conditional Use Permit; Building and other Permits (other approvals may be necessary based on final proposal)

3. The most immediate projects involve the following undertakings
1. The Relocation of Parking Lots A and B. According to the Airport Authority, these parking lots are being relocated to portions of the Adjacent Property because they are located in an area that is closer to the runways than ideal under contemporary airport design standards. On or about March 5, 2000, an aircraft landing at Burbank Airport crashed through the fence and rolled out onto Hollywood Way, immediately opposite Parking Lot B. Prior to the passage of Measure A, the City had anticipated acting on this application in November, 2001.

(b) Installation of Electric Service Panel. On October 17, 2001, B & K Electric Co., Inc., on behalf of AmeriFlight, an air cargo company, applied for an electrical permit for the installation of an 200-amp electrical service panel to replace an existing 100-amp panel. The panel would be located at AmeriFlight’s Airport facility located at 4700 Empire Avenue. The panel would provide electrical service for an air compressor to be used in an existing spray booth. Absent Measure A, this permit application would have been processed in a matter of days.(c ) The permitting of construction of eight new awnings on the outside of the Airport terminal building]

1. The permitting for improvements to the existing Airport passenger terminal, including new passenger seating areas, new rental car rental kiosks and other improvements.

(e) Relocation of Desmond’s Trailer Storage Lot. The Airport Authority seeks approval under PUC Section 21661.6 to use a portion of the Adjacent Property for a trailer storage lot. The land would be leased to Desmond’s, Inc., which would operate the lot. Prior to the passage of Measure A, the City had anticipated acting on the application in November 2001.

1. The Airport Authority submitted initial applications for the Parking Lot Replacement Project in 2000, and submitted a superceding application, along with a Negative Declaration under the CEQA, Cal. Pub. Res. Code § 21080(c), on September 5, 2001 ("Parking Lot Application"). The City declared the Parking Lot Application complete on September 21, 2001. Pursuant to the City’s PUC § 21661.6 Procedures, staff is preparing a Preliminary Analysis of the Parking Lot Application. That Preliminary Analysis is nearly complete and City staff expect to release the document for public review and comment within the next several weeks. According to the City’s PUC § 21661.6 Procedures, the City intends to make a final decision on the Parking Lot Application within ninety days, by December 21, 2001, though City staff has indicated to the Airport Authority that action could occur considerably sooner.
2. The City staff’s analysis reveals that the Parking Lot Application as well as other requests and applications set forth above that have been or are planned to be submitted by the Airport Authority and others are, at least on their face, subject to Measure A. For example, the City Council’s potential approval of the Parking Lot Application pursuant to PUC § 21661.6 seemingly would constitute "consent" under Measure A. The project involves "construction" as it will entail grading, paving, installation of lighting, and the building of certain structures. The project also may involve a "new, rebuilt, relocated, or expanded Airport facility" since it concerns the elimination of parking for Airport patrons at one site and development of a similar number of parking spaces at another location.
3. The City must act soon on the issuance of permits for construction of other facilities on property that lies within the Airport boundary including new awnings on the Airport terminal, new electrical service for an Airport Authority tenant, improvements to the Airport terminal building, and lease of Airport Authority property for the storage of trucks and trailers. Any of these actions could involve "consent" to projects that may involve a "new, rebuilt, relocated, or expanded Airport facility" since these are new undertakings on property owned by the Airport Authority, within the boundaries of the Airport, and for purposes related to the operations of the Airport.
4. Although City Officials have been informed by the City Attorney that significant portions of Measure A are unconstitutional or otherwise illegal, and although portions of Judge Otero’s opinion appear to be applicable to Measure A, City Officials are still obligated under law to enforce Measure A. See, e.g.,:
1. California Constitution, Article III, Section 3.5, which appears to prohibit a city from declaring a local ordinance or initiative to be unconstitutional or otherwise refusing to enforce the law because it is considered unconstitutional unless and until the California Court of Appeal renders such opinion with regard to the initiative at issue;
2. Government Code § 1222, making the willful omission of a city official to perform a duty required by a statute or ordinance a misdemeanor; and
3. Penal Code § 661, declaring that neglect or violation of an official duty on the part of a city official may be punishable by removal from office.
5. Conversely, upholding and applying Measure A to the pending and anticipated permit and land use applications of the Airport Authority or others would:
1. Lead to a violation of the oath of City Council members and other public officials of Burbank to uphold and enforce the laws and Constitution of the State of California;
2. Subject the City to a lawsuit to reverse or alter its denial of such applications; and
3. Subject the City or certain public officials to potential liability for applying an apparently illegal ordinance to deprive parties of various uses of their land or other rights.
6. Based on its view that Measure A is illegal, the Airport Authority has specifically threatened litigation against the City should it take steps to enforce Measure A. As declared in a letter of October 10, 2001 written by Mr. Chris Holden, President of the Airport Commission: "The City faces potentially significant liability in damages and attorneys fees to land owners and businesses whose rights would be adversely affected if the measure is enforced."
7. Because the Airport Authority seeks approvals, permits or what may be deemed "consent" under Measure A on a regular basis, the City already has been and will continue to be persistently faced with the conundrum of attempting to apply provisions of City law that appear on their face to be in violation of state statute and the California Constitution.

1. CAUSES OF ACTION
1. There exists an actual, present, concrete and justiciable controversy between the Airport Authority and the City of Burbank as to the applicability and legality of Measure A.
2. It is in the public interest for the Court to issue a Declaratory Judgment with regard to the Causes of Action set forth below.

FIRST CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT MEASURE A
IMPERMISSIBLY INTERFERES WITH THE POWERS
DELEGATED EXCLUSIVELY TO THE BURBANK CITY

COUNCIL UNDER PUBLIC UTILITIES CODE SECTION 21661.6


3. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 40 of this Complaint as if restated here in full.
4. Local laws, including local laws enacted by initiative, may not conflict with state laws in matters of statewide concern.
5. Measure A purports to apply to, among other things, decisions of the City Council under PUC § 21661.6, including approval of a plan for the use of any property within Burbank for construction or expansion of Airport facilities prior to the Airport Authority’s acquisition of such property and approval of an amendment to a previously approved plan.
6. The California Legislature in PUC § 21661.6 designated the Burbank City Council as the exclusive entity empowered to approve or disapprove plans for the acquisition and use of property within Burbank for Airport projects pursuant to PUC § 21661.6.
7. The exercise of the Burbank City Council’s authority under PUC § 21661.6 may not be limited by any entity other than the Legislature.
8. The authority conferred on the Burbank City Council in PUC § 21661.6 may not be exercised by any entity other than the Burbank City Council.
9. The scope of the Burbank City Council’s authority under PUC § 21661.6 may not be limited or restricted by initiative.
10. The scope of the Burbank City Council’s authority under PUC § 21661.6 may not be limited or restricted by the imposition of conditions for granting approval established by other entities or by the voters of Burbank.
11. Measure A restricts the ability of the Burbank City Council to make decisions under PUC § 21661.6 in ways not provided for by the Legislature.
12. Measure A requires the Burbank City Council to approve or deny an application under PUC § 21661.6 based on whether the Airport Authority has met certain preconditions that are not mandated by the Legislature.
13. Applying Measure A to Airport projects subject to approval under PUC § 21661.6 would violate the Legislature’s delegation of exclusive PUC § 21661.6 authority within Burbank to the Burbank City Council.
14. PUC § 21661.6 involves matters that are not purely local in scope. Because Measure A conflicts with state statutes that are not purely local in scope, it cannot be enforced by City Officials.
15. The conflicts between PUC § 21661.6 and Measure A are present with regard to applications currently pending or immediately anticipated. For example, the imminent decision by the Burbank City Council on the Parking Lot Application requires approval of the Burbank City Council under PUC § 21661.6. Because these provisions of Measure A conflict with the duty and responsibilities of the Burbank City Council under PUC § 21661.6, these provisions of Measure A cannot legally be enforced with regard to the pending Parking Lot Application.



SECOND CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT THE
REQUIRMENT THAT CERTAIN LAND-USE DECISIONS
AND/OR AMENDMENTS OF MEASURE A BE APPROVED
BY A TWO-THIRDS VOTE OF THE ELECTORATE OF
BURBANK VIOLATES THE CALIFORNIA

CONSTITUTION AND STATE ELECTION LAW

16. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 53 of this Complaint as if restated here in full.
17. Measure A mandates that any project involving "the financing and/or construction of an airport terminal" must be approved by a two-thirds affirmative vote of the electorate of Burbank. See Paragraph 3 ("The City shall obtain the consent of the electorate, with a two-thirds affirmative vote, prior to the City’s final approval of the financing and/or construction of an airport terminal.").
18. Measure A prohibits the Burbank City Council from passing any law or ordinance modifying any aspect of Measure A without subjecting such law or ordinance to a two-thirds affirmative vote of the electorate. See Paragraph 7 ("This initiative shall not be modified, except by a 2/3 affirmative vote of the electorate at a regular Municipal election.").
19. California Constitution Article II, Section 10(a), mandates that an initiative or referendum is effective upon approval by a simple majority of electors: "An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If a referendum petition is filed against a part of a statute the remainder shall not be delayed from going into effect."
20. California Elections Code § 9217 provides: "If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city."
21. California Elections Code § 9222 provides: "The legislative body of a city may submit to the voters, without a petition therefor, a proposition for the repeal, amendment, or enactment of any ordinance, to be voted upon at any succeeding regular or special city election, and if the proposition submitted receives a majority of the votes cast on it at the election, the ordinance shall be repealed, amended, or enacted accordingly. A proposition may be submitted, or a special election called for the purpose of voting on a proposition, by ordinance or resolution."
22. These provisions of Measure A conflict with California Constitution, Article II, Section 10(a) and California Elections Code §§ 9217 and 9222 by requiring that initiatives or referenda (a) approving the financing and/or construction of an airport terminal, or (b) amending, modifying or repealing Measure A, may be approved only by a two-thirds affirmative vote of the electorate.
23. These provisions of Measure A conflict further with California Elections Code § 9222 by requiring that any measure to modify Measure A be voted on only at a "regular municipal election" whereas Section 9222 permits any proposition that would amend or repeal Measure A to be voted on at "any succeeding regular or special city election."
24. California Elections Code § 9214 requires that when an initiative petition has been "signed by not less than 15% of the voters of the city . . . and contains a request that the ordinance be submitted immediately to a vote of the people at a special election," that the City Council, in the event it does not adopt the ordinance without alteration, "immediately order a special election, to be held not less than 88 nor more than 103 days after the date of the order, at which the ordinance, without alteration, shall be submitted to a vote of the voters of the city."
25. These provisions of Measure A conflict with California Elections Code § 9214 by requiring that any initiative that would modify Measure A be voted on only at a "regular municipal election" whereas Section 9214 permits an initiative that would modify Measure A to specify that it will be voted on at a special election, and mandating that the city council set such an initiative down for special election, and by requiring approval of 2/3 of the electorate and not a majority of voters voting in the election.
26. Because these provisions of Measure A conflict with the California Constitution and with statutes of the State of California, these provisions can not legally be enforced by City Officials of the City of Burbank.

 


THIRD CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT MEASURE A
IS BEYOND THE INITIATIVE POWER

CONFERRED BY THE CALIFORNIA CONSTITUTION

27. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 64 of this Complaint as if restated here in full.
28. Pursuant to California Constitution Article II, Sections 8 and 11, the initiative power is limited to the consideration of "statutes and amendments to the Constitution."
29. The initiative power is limited to legislative matters. Administrative and other non-legislative matters are not subject to initiative.
30. The initiative power does not permit the electorate to adopt measures that, rather than enact a statute, instead direct another legislative body to enact future, unspecified legislation. Such a measure is prohibited indirect legislation.
31. Measure A requires a future City Council to enact unspecified laws to amend the City General Plan, Zoning Ordinance and numerous other City laws that may not conform to Measure A. Specifically, Paragraph 8 of Measure A requires the City to "conform all applicable laws to this initiative."
32. City laws cannot be "conformed" to Measure A by codifying Measure A into the City’s Code or by appending Measure A to the General Plan. The City’s General Plan, Zoning Ordinance and other laws contain provisions that are inconsistent with Measure A, different from Measure A and/or embody legislative policy determinations that conflict with Measure A. Conforming those laws to Measure A would require substantial and complex revisions to those laws that cannot be accomplished by merely incorporating the language of Measure A into such laws.
33. Measure A does not describe which laws are to be "conformed," which portions of those laws are to be "conformed," or how to incorporate the terms of Measure A into those laws so as to "conform" them.
34. Measure A does not constitute a "statute or amendment to the Constitution" within the meaning of California Constitution Article II, Section 8. Instead, Measure A constitutes indirect legislation, which is prohibited under the California Constitution. As such, Measure A is not a valid exercise of the initiative power pursuant to California Constitution Article II, Section 11.
35. Provisions of Measure A, including but not limited to Paragraph 8 thereof, further seeks to control the administrative acts of the City Council and to bind future City Councils to certain actions by restricting their right to legislate in certain areas, neither of which is permissible under the California Constitution or within the initiative power.
36. Provisions of Measure A, including but not limited to Paragraph 8 thereof, further seeks to control the administrative acts of City Officials by attempting to impose conditions on the enforcement of ministerial and other non-legislative acts, which is neither permissible under the California Constitution nor within the initiative power.
37. Because these provisions of Measure A violate the California Constitution, these provisions of Measure A cannot legally be enforced by City Officials of the City of Burbank.

 

FOURTH CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT MEASURE A

CONFLICTS WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

38. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 75 of this Complaint as if restated here in full.
39. Measure A at Paragraph 4(h) requires that, prior to the City’s "consent to the acquisition or rezoning of any land for Airport use, [or] consent to the financing or construction of any new, rebuilt, relocated or expanded Airport facility, under any conditions or due to any circumstances," that, inter alia, "[t]he Airport shall prepare and certify a new Environmental Impact Report for property it owns, leases or uses for Airport or Airport related purposes."
40. Although the term "Environmental Impact Report" ("EIR") is not defined in Measure A, City Officials assume that the requirement for EIR refers to an EIR called for under CEQA. To the extent this portion of Measure A calls for some type of environmental impact report other than that defined in CEQA, this portion of Measure A is invalid as unconstitutionally vague. (See Fifth Cause of Action, infra.).
41. CEQA is a comprehensive state law detailing how, and in what circumstances, public agencies must analyze the environmental impacts of certain projects.
42. Under CEQA, not all projects require environmental analysis because CEQA applies only to "discretionary projects proposed to be carried out or approved by public agencies." Cal. Pub. Res. Code § 21080.
43. Even for "discretionary projects proposed to be carried out or approved by public agencies," CEQA does not require that an EIR be prepared for all projects. Cal. Pub. Res. Code §§ 21080.1, 21080.3 & 21080.4. In many cases, projects may be approved and constructed without an EIR by issuing a negative declaration or a mitigated negative declaration. Furthermore, CEQA describes a number of projects that are exempt from any CEQA analysis. These include "ministerial projects," and projects to "maintain, repair, restore, demolish, or replace property or facilities" destroyed in certain disasters.
44. CEQA defines the scope of the area to be studied in an EIR as the "area that will be affected by a proposed project." Cal. Pub. Res. Code §§ 21060.5 & 21151(b).
45. CEQA requires that the EIR be prepared by the "lead agency," which is the "public agency with the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment." Cal. Pub. Res. Code §§ 21100 & 21067.
46. Measure A conflicts with CEQA in various and numerous ways. For example, Measure A conflicts with CEQA by:
1. Requiring the preparation of an EIR for any "acquisition or rezoning of any land for Airport use" or "financing or construction of any new, rebuilt, relocated or expanded Airport facility," regardless of whether such projects fall within the definition of a "project" under CEQA, regardless of whether the project requires an "approval" within the meaning of CEQA, and regardless of whether such a project would be exempt under the terms of CEQA itself.
2. Requiring the preparation of an EIR when CEQA would only require the preparation of an Initial Study and a Negative Declaration or a Mitigated Negative Declaration.
3. Requiring the EIR to include all "property [the Airport] owns, leases or uses for Airport or Airport related purposes" even if such property is not within "the area that would be affected by the proposed project."
4. Requiring the "Airport" to prepare an EIR even if it is not the lead agency for the project. Measure A applies, on its face, to any "Airport use," which includes uses related to the Burbank-Glendale-Pasadena Airport that are not undertaken by the Burbank-Glendale-Pasadena Airport Authority. For example, private entities own and operate a range of facilities on and adjacent to the Burbank-Glendale-Pasadena Airport, including general aviation facilities, Airport parking facilities, hotels, service facilities and similar uses. A construction or development project by one of those entities may require approvals from Burbank that would be subject to CEQA but would not require any approval or action by the Airport Authority that would be subject to CEQA. Burbank would be the lead agency for such a project and the Airport Authority would have no formal CEQA role in the project. Nonetheless, Measure A appears to require the Airport Authority to prepare an EIR for such a project.
47. The conflicts between CEQA and the requirements for preparing an EIR under Measure A are present with regard to applications that are currently pending with the City or immediately anticipated. For example, under CEQA:
1. The approval for the pending Parking Lot Application does not require the preparation of an EIR because an Initial Study determined that the project will not cause any significant environmental impact.
2. The issuance of building permits for the proposed relocated parking lot and other pending and contemplated projects is a non-discretionary act for which the preparation of an EIR is not required.
3. Even if a full EIR were required in connection with the Parking Lot Application, that EIR would not address all property owned, leased or used by the Airport, such as land leased by the Airport but which is not involved in, affected by or otherwise connected to the Parking Lot Application.
4. The Airport Authority would not be required to prepare an EIR as lead agency on the pending project by Zelman Partners to construct Airport parking on property adjacent to the Airport, which although related to the Airport is being proposed and conducted by private parties unrelated to the Airport Authority.
48. Because provisions of Measure A conflict with CEQA, which is not limited to the application of local law, these provisions of Measure A cannot be enforced by City Officials of the City of Burbank.


FIFTH CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT MEASURE A IS

UNCONSTITUTIONALLY VAGUE

49. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 86 of this Complaint as if restated here in full.
50. A City is required to enforce its laws in accordance with due process. Cal. Const., art. I, § 7.
51. A statute or ordinance that is so vague such that persons subject to it cannot reasonably understand or gauge how to modify their behavior so as to comply with that statute or ordinance, cannot be enforced in conformance with due process of law required under California Constitution, Article I, Section 7.
52. The City of Burbank cannot properly enforce provisions of Measure A in accordance with its duty to enforce its laws with due process because significant portions of Measure A are unduly vague, including specifically the following provisions:
1. The requirement that the "Environmental Impact Report" be "for property [the Airport] owns, leases or uses for Airport or Airport related purposes" is unenforceably vague because, under state law, an environmental report analyzes the impacts of a particular project, not a predefined land area. Measure A does not provide any guidance as to what must be analyzed with respect to Airport-owned or used land that is not impacted by the project for which City "consent" may be sought.
2. The term "consent" in Paragraph 4 is unenforceably vague because it provides no guidance to the City or to the public as what measures require compliance with Measure A. There is no applicable City process that requires City "consent." Under zoning, land-use and other laws, the City approves or disapproves a wide range of applications following applicable procedures. Measure A provides no basis to determine whether "consent," and therefore compliance with the 12 preconditions, refers to discretionary approval, ministerial approval of building or other permits, or the mere failure formally to object to a project not otherwise subject to affirmative City regulation. Moreover, it cannot be determined whether City approval of City-initiated zoning and land use law that may permit "Airport uses" is subject to Measure A. As a result, the City Community Development Department cannot determine from the text of Measure A whether any or all of the 12 listed conditions must be satisfied before City staff can issue a building permit for an Airport project and if so, for what types of Airport projects.
3. The term "Master Plan" in Paragraph 4(i) of Measure A is unenforceably vague because it is impossible to determine from the plain language what the "Master Plan" must depict, the period of time it must cover or any other guidance as to the contents of such document. Although a capitalized term, it is not defined in Measure A and there is no single understanding of what a "Master Plan" must contain or depict. Indeed, different California statutes require very different kinds of "master plans" for very different kinds of projects. Measure A provides no guidance as to which "Master Plan" is referred to, the purpose of providing the "Master Plan" or what it should contain.
4. Paragraph 4(k) is unenforceably vague because it is impossible to determine for what violations the Airport Authority is potentially liable. Assuming, based upon context, that Paragraph 4 is intended to apply to the Airport Authority (the entity) and not merely the Airport (the facility), Paragraph 4(k) imposes penalties on the Airport Authority for violations of "this initiative." The operative sections of Measure A, Paragraphs 3 and 4, bar certain actions of the City unless specific conditions are met. Measure A does not purport to restrict the actions of the Airport (again, presumably intended to be the Airport Authority). As written, Measure A could be understood to impose a fine on the Airport Authority if the City were to approve an Airport project without complying with Measure A’s preconditions. It could also require the Airport Authority to pay a fine if the City failed to meet its various obligations under Paragraphs 5, 6 and 8. Paragraph 4(k) could also be understood to impose a fine for violations of the curfew, caps and other conditions that the Airport Authority must satisfy. But the plain language of Measure A does not provide any basis to determine which interpretation of its language is correct. It is, therefore, impossible to determine for what violations of Measure A the Airport Authority, the City or any other party, is potentially liable.
5. The requirement that the Airport Authority obtain a legal "ban on operations by all aircraft not originally certificated as meeting FAR Part 36 Stage 3 noise limits" is unenforceably vague because it does not clearly indicate which aircraft must be banned. This provision could require a ban on all jet aircraft that, at the time of manufacture of the airframe, were not certificated as meeting FAR Part 36 Stage 3 noise limits (i.e., Stage 2 jets that were retrofitted to meet Stage 3 requirements). Or it could require a ban of all jet aircraft whose engines were not certificated to meet that standard. Alternatively, the language could require the banning of all Stage 2 jets and all non-jet aircraft because non-jet aircraft are not generally certificated as meeting any Stage noise limit under FAR Part 36. It is impossible to determine from the plain terms of Measure A which kinds of aircraft the Airport Authority would have to ban pursuant to Paragraph 4(e).
6. Although the term "Airport" is defined in Paragraph 1 of Measure A, the term is used elsewhere in Measure A in a manner that is inconsistent with that definition, thereby rendering such use of the term unenforceably vague. As defined in Measure A the term "Airport" refers to a physical location or facility. Under this literal understanding of the term, an "Airport use" or "Airport facility" would include private projects that relate to Airport functions, such as off-site airport parking or general aviation facilities. It could also include facilities whose economic viability is tied directly to the Airport, including hotel facilities and other facilities that serve the traveling public or the aviation industry. Conversely, in other provisions of Measure A the term "Airport" appears to refer to the entity that operates the Burbank-Glendale-Pasadena Airport. The context does not make it obvious which use of the term is intended.
53. Because Measure A contains numerous key provisions that are unduly vague, these provisions Measure A cannot be enforced by City Officials of the City of Burbank without violating due process requirements of the California Constitution.

SIXTH CAUSE OF ACTION

(For Declaratory Relief Against All Defendants)

FOR DECLARATORY JUDGMENT THAT MEASURE A

IMPOSES CONDITIONS IN EXCESS OF THE CITY’S POLICE

POWER IN VIOLATION OF THE CALIFORNIA CONSTITUTION

54. The City of Burbank incorporates by reference and realleges Paragraphs 1 through 91 of this Complaint as if restated here in full.
55. An initiative may not purport to enact laws or impose requirements that are beyond the police power of the City to enact or impose. In land-use matters, the police power is limited to actions that are related to a legitimate governmental interest in regulating the activity at issue.
56. Measure A requires that the Airport Authority satisfy 12 enumerated conditions before the City may "consent to the acquisition or rezoning of any land for Airport use, [or] consent to the financing or construction of any new, rebuilt, relocated or expanded Airport facility, under any conditions or due to any circumstances . . . ."
57. The 12 conditions that the Airport Authority must satisfy under Measure A are mandatory and apply to construction of any Airport facility. Accordingly, the Airport Authority would have to satisfy all 12 conditions in order for the City to approve even those projects that bear no reasonable relationship to some or all of the conditions.
58. As applied to the pending Parking Lot Application, for example, imposition of many of the 12 conditions of paragraph 4 of Measure A would be in excess of the City’s police power because the conditions are not reasonably related to a legitimate governmental interest in regulating the proposed parking lots. By way of example only, based on the present status of review and analysis performed by City staff and the fact that the Parking Lot Application proposes no increase in the number of Airport parking spaces:
1. Approval of the Parking Lot Application will not lead to any increase in nighttime aircraft operations. Therefore, it does not appear to advance any legitimate government interest to require the Airport Authority to "implement[] a legally obtained, irrevocable, enforceable, and binding mandatory curfew on all aircraft operations and engine run-ups, either indoors or outdoors, between the hours of 10:00 PM and 7:00 AM.", as required in Paragraph 4(a), as a condition of approval of the Parking Lot Application.
2. Approval of the Parking Lot Application will not lead to any increase in aircraft operations or increased noise levels in residential areas surrounding the Airport to any significant degree. Therefore, it does not appear to advance any legitimate government interest to require the Airport Authority to "have a program for sound insulation that includes providing the matching funds required for completion of the work," as required by Paragraph 4(f), as a condition of approval of the Parking Lot Application.
3. Approval of the Parking Lot Application will not lead to any increase in aircraft operations or affect the scheduling of aircraft operations. Therefore, it does not appear to advance any legitimate government interest to require the Airport Authority to "agree[] to not lengthen existing runways, add additional runways, or modify runways to accommodate heavier or larger aircraft," as required by Paragraph 4(j), as a condition of approval of the Parking Lot Application.
59. Measure A cannot legally be applied to the Parking Lot Application because the preconditions of approval mandated by Measure A do not appear to substantially advance any legitimate interest of the City in regulating the activities associated with the Parking Lot Application.
60. Measure A cannot legally be applied to any project otherwise subject to Measure A where requiring compliance with the terms and conditions of Measure A would not substantially advance a legitimate governmental interest in regulating some aspect of that project.
61. Although the requirement of the satisfaction of certain conditions for the granting of land-use approvals is not per se improper or illegal, and some or all of the preconditions set forth in Measure A are or may be reasonably related to legitimate interests of the City of Burbank for certain projects at the Airport, the manner in which Paragraph 4 of Measure A imposes mandatory preconditions on any Airport-related project is so overbroad as to exceed the police power of the City.
2. PRAYER FOR RELIEF

WHEREFORE, the City of Burbank prays for a judgment against the Airport Authority for the following:

1. A declaratory judgment that:
1. Measure A is an impermissible restriction on the power that the Legislature delegated exclusively to the Burbank City Council to make decisions pursuant to PUC § 21661.6 in the City of Burbank; and
2. Measure A is invalid because its provisions that call for a two-thirds affirmative vote by the electorate, including Paragraphs 3 and 7 of Measure A, which call for such vote for any approval of the financing and/or construction of an airport terminal and any amendment or modification of Measure A, conflict with the California Constitution and State statutes dealing with matters of statewide concern and are thereby void; and
3. Measure A is beyond the initiative power reserved to the people in California Constitution Article II, Sections 8 and 11, because it constitutes indirect legislation and because it embraces administrative and other non-legislative matters, and is therefore void; and
4. Measure A conflicts with the requirements of CEQA, which is a statute of statewide concern, and is therefore void; and
5. Measure A is unconstitutionally and otherwise unduly vague and is therefore void; and
6. Satisfaction of the conditions set forth in Paragraphs 4(a) – 4(l) of Measure A may not be required unless any or all of such conditions substantially advance a legitimate governmental interest in regulating some aspect of that project and that the conditions set forth in Paragraphs 4(a) – 4(l) of Measure A may not be required in order for the City to approve the Parking Lot Application; and
7. Because the conditions set forth in Paragraphs 4(a) – 4(l) of Measure A impose numerous mandatory conditions on all Airport projects and leave City Officials with no discretion to determine whether such conditions are reasonably related to a legitimate City interest given the project at issue, the conditions are so unduly overbroad as to exceed the City’s police power.
2. For an Order declaring that the City of Burbank cannot enforce those provisions of Measure A that the Court determines are void, invalid or otherwise in conflict with the California Constitution or California law.
3. For costs and attorneys’ fees as permitted by Cal. Code Civil Procedure § 1021.5 and other law and where the Court deems it appropriate.

4. For such other and further relief as the Court may deem just and proper.

RESPECTFULLY SUBMITTED BY,

Dated: November __, 2001