CRITICS: AIRPORT BALLOT FLAWED.

Byline: Katie Cooper Staff Writer

BURBANK - With an Oct. 9 election set for a ballot measure that would severely limit flights at Burbank Airport, attention is expected to focus on the legal ramifications of the controversial initiative if it succeeds at the polls.

Opponents of the Restore Our Airport Rights initiative - which would cap the number of flights and impose a nighttime curfew - are promising intense public scrutiny of what they say is a host of legal flaws in the measure that would expose the city to lawsuits.

And while supporters concede the measure could invite litigation, they said they will work to convince voters that a court-based resolution would leave the city in a better bargaining position with the airport over plans for a new passenger terminal.

Emotions were heightened last week when the City Attorney's Office released a memo that warned a legal quagmire would result if the initiative passes.

``I'll tell anyone on Earth, anyone who will listen, that (the measure) is fundamentally flawed,'' said Charles Lombardo, a Burbank commissioner on the airport's governing body and one of the initiative's most outspoken critics.

``We'll lose local control and ... the city attorney's memo proves it,'' he said.

Howard Rothenbach, ROAR's chairman and a co-author of the measure, said the memo shows that city officials don't like the initiative and are trying to scare the public.

``They make it sound like it's the biggest, ugliest mistake that has ever come along,'' he said.

Rothenbach said he plans to release a memo detailing what he says are deliberate misstatements about the measure. He declined to elaborate.

In addition to the flight restrictions, the initiative would require two- thirds voter approval for any new terminal, and preparation of both an environmental impact report and an airport ``master plan.''

But in his legal analysis, City Attorney Dennis Barlow said those latter provisions violate state law.

California election law requires only a simple majority for an initiative's passage, Barlow said. Super-majorities are reserved exclusively for taxes and bond issues.

And, he said, the measure could be unlawfully vague because it appears to require an EIR on the airport's existing operations - which would conflict with state law - and it never defines what a master plan is.

``On its face, the initiative poses a number of very, very difficult legal problems,'' said Peter Kirsch, special counsel to Burbank on airport issues.

Kirsch said he has yet to prepare a detailed legal analysis on the issues that would be raised under federal law, but he said the proposed restrictions on the airport's operations and the levy of fines called for under the measure would pose problems, at the very least, for the airport and the Federal Aviation Administration.

``I can actually see dozens of interested parties,'' said Kirsch, running down a list that included the air carriers that operate out of the airport as well as the general aviation companies based there.

Airport spokesman Victor Gill declined to comment on whether the airport considered itself a potential plaintiff if the measure passed.

But, he said, ``It seems apparent that there will be a period of uncertainty that will take time and effort and retard the city and airport from moving forward.''

Rothenbach said he did not set out to invite litigation when he drafted the measure.

``But I guess you learn as you go along and now I understand that it is a possibility,'' he said.

He said some of the legal flaws, including the two-thirds vote requirement, could easily be remedied by a severability clause included in the measure that would strike down unlawful portions and keep the remainder of the initiative intact.

``So you're going to have to change it,'' said Rothenbach. ``How much would that cost to go into court to change?''

But, he said, forcing the initiative, once successful, into the courts would offer the city leverage in negotiations.

``If we say we want a 10 p.m. to 7 a.m. curfew, well, that's just something the FAA is going to have to deal with,'' he said.

The FAA is conducting a study on whether a curfew at Burbank Airport is permissible under federal transportation laws.

Rothenbach said he spent close to 100 hours drafting the measure and that an elections attorney in West Los Angeles spent about eight hours reviewing the language and making some recommended changes.

Kirsch agreed the severability clause could eliminate legally troublesome provisions, but said there appeared to be too many for the measure to remain viable.

``The ROAR drafters didn't appear to be particularly well-informed on legal matters as it pertains to the drafting of initiatives,'' said Kirsch.

Lombardo, who plans to campaign against the initiative, said it smacks of arrogance to put something before voters that is legally flawed.

``They just make up rules that violate the law,'' he said.

Lombardo said he will attempt to convince voters over the next five months that avoiding litigation is the smarter course for getting a new terminal that residents can live with.