Moot Point in San Marcos : Trash-to-Energy Pact Upheld on Appeal

In a decision that arguably has little practical effect, the 4th District Court of Appeal has ruled that a 1982 contract between the county and the would-be developer of a trash-to-energy plant in San Marcos is valid.

The appellate judges, in their ruling Monday, said Superior Court Judge Alpha Montgomery erred in December, 1987, when he said the contract was invalid because of shortcomings in environmental studies.

The three-jurist panel agreed unanimously that not only did the plaintiff, Christward Ministries, file its lawsuit challenging the contract after the statute of limitations had expired, but also that Montgomery’s ruling was flawed because it improperly applied one set of state laws to another.

Filed Several Suits

Christward Ministries operates a 640-acre religious retreat near the site of the proposed trash plant along the southern boundary of San Marcos, in a rural area known as Elfin Forest.

The organization has filed several lawsuits to block the plant, and had argued in 1987 that the contract the county entered into with North County Resource Recovery Associates in 1982, and which was amended in 1985, was illegal because it was based on environmental findings by the city of San Marcos that were themselves ruled invalid. By extension, the group argued, the contract between the county and NCRRA was invalid.

Montgomery agreed with Christward Ministries and threw out the contract that would have allowed NCRRA to design, build and operate the $250-million project. The plant is designed to recycle some of North County’s trash and burn much of the rest of it as a source of fuel to generate electricity.

The county appealed Montgomery’s ruling, and the appellate court agreed with its argument that the state laws applying to environmental impact do not govern the administrative contract between the county and NCRRA, because the two areas of law are independent of one another.

Furthermore, the judges ruled that Christward Ministries waited too long to sue the county.

The entire issue has been considered in recent months to be somewhat moot anyway; NCRRA and the county are renegotiating the contract.

Bridge Around It

“The essence of the whole issue is this: The county figured if they lost the appeal, they could build a bridge around it by writing a new contract,� said Stephen Isaac, spokesman for Christward Ministries. “And they’ve done that by entering new negotiations on the contract.

“So for all intents and purposes, the result would have been the same whether we won or lost the appeal,� he said. “We hate to lose a case, but it’s not devastating. They already had the ball rolling on a new contract. The practical consequences of the ruling are not any different.�

In January, the County Board of Supervisors authorized its staff to negotiate with NCRRA, at the request of the firm, which is hoping for new contract language that will force the county to share the financial liabilities in the operation of the privately financed project.

Deputy County Counsel Leonard Pollard agreed that, had the county lost its appeal and the 1982 contract was held invalid, “we would have switched from amending the old contract to writing a new contract. Clearly, now, there’s no problem in amending the old contract. The air has been cleared.�

The controversial project still faces other legal hurdles, including a lawsuit against the county by the cities of Escondido, Carlsbad and Encinitas challenging its right to negotiate exclusively with NCRRA to build the plant, as opposed to putting the project out to competitive bidding.

NCRRA’s parent company, Thermo Electron Corp., hopes to break ground on the project before the end of the year if it and the Board of Supervisors agree on amendments to the contract.