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The location of Orange County’s first veterans cemetery may be decided in Superior Court as the result of a lawsuit filed by former Irvine Mayor Larry Agran.

Agran’s suit against the city, filed Nov. 9, challenges the City Council’s decision to move the cemetery from the heart of the former El Toro Marine Corps Air Station to 125 acres of strawberry fields near the 5 and 405 freeways that was on the edge of the base. The move is the result of a land swap with developer FivePoint Communities.

“I testified on a number of occasions that their proceedings were contrary to all kinds of laws that were on the books that require study and disclosure and warned them that they were inviting a lawsuit … They weren’t listening to me or anybody else,” Agran said in a Thursday phone interview, referring to his public comments over the months.

The lawsuit alleges the city didn’t follow the law when it decided to move the cemetery. The original site was the product of a city ordinance, the lawsuit claims, so a land swap also would have to be done through an ordinance, as required under state law.

However, Mayor Don Wagner said the cemetery never was part of the original ordinance, which was to secure a portion of the old base near the Great Park for later use by the city. The original ordinance, the Amended and Restated Development Agreement, was adopted in 2009 and it wasn’t until 2014 the site was chosen for a cemetery.

“If you stop and you think about it, the veterans cemetery was an idea that came up after the ARDA (the original) site was already existing. It wasn’t a cemetery site the day the base was transferred to us. That was something that came up later,” Wagner said in a Thursday phone interview.

In June the City Council voted for the land swap. FivePoint has pledged up to $10 million to help fund the first phase of construction. Veterans have sought a cemetery in Orange County for years. Currently, the closest veterans cemeteries are in Riverside and San Diego Counties.

Proponents of the swap say the new site is shovel ready and construction can begin almost immediately and at less cost to taxpayers than the original site.

Opponents of the swap say it’s a handout to FivePoint and during the swap process the city walked away from state funding.

The original El Toro site still has portions of aircraft taxiways, ramps, hangars, jet testing buildings, barracks and an active Federal Aviation Administration antenna array and an estimated $78 million price tag to develop the first phase.

A recent appraisal values the El Toro site at $4 million, while pricing the strawberry fields at $68 million.

“The land swap agreement is a giveaway to wealthy developers; it overwhelmingly favors (FivePoint) to the detriment of the people of Irvine, veterans and the environment,” reads the lawsuit. It is an “attempt to distract from this reality by citing a faulty appraisal that the (El Toro site) is worth a mere $4 million, when it is likely worth 100 times that amount, while claiming the freeway site is worth $68 million.”  

The lawsuit was filed the same day more than 19,000 signatures for a referendum were submitted to the city clerk in an effort overturn the zoning ordinance. The referendum, started by Irvine resident and U.S. Army veteran Ed Pope, will put the decision on whether to overturn the ordinance before Irvine voters next November — unless the City Council rescinds its decision or holds a special election.  

Pope’s election petition began a heated battle between Orange County Veterans Memorial Park Foundation Chairman Bill Cook and his supporters, who back the strawberry fields site, and the Save the Veterans Cemetery group and its supporters, who want the cemetery kept near the center of the former base.

“Bill Cook has been running around trying to interfere with the referendum process. He has been really quite outrageous in his behavior, yelling at me and others. He was basically stalking me and others. It was totally inappropriate. He would shout at people when we were trying to engage them in a dialogue,” Agran said.

Cook, a Vietnam veteran and former Marine, said the referendum campaign was based on “nothing but lies.”

“He (Agran) was not saving the veterans cemetery. The way they went about it — they threatened people, they assaulted people, I witnessed an assault and called for security at Walmart,” Cook said. “I do not understand his motivation for doing this … there’s no logic behind it. There’s not even a good reason for it except that he’s being a small person.”

But Agran said Cook, along with Councilwoman Melissa Fox, were intimidating signature gatherers.

“He would say that our signature gatherers were liars. At one point he flipped folks off. It was really the rantings of what appeared to me to be a crazy guy,” Agran said. “Melissa Fox was a part of all that too. She enlisted a bunch of so-called young Democrats who were also stalking people.”

Fox was apparently assaulted by a signature gatherer last month, according to the OC Register.

Cook accused Agran of grandstanding and using the cemetery to run again for office in Irvine.

“Why? What is his purpose? Except that he’s trying to create an issue where there isn’t one and then run for power. He threatened a recall of Melissa Fox, so he’s really got a fire in his belly to get back on the City Council,” Cook said.

Agran dismissed Cook’s claim.

“I’m not even going to dignify that comment with a response,” Agran said.

Meanwhile, the lawsuit also claims there wasn’t enough public input on the final swap agreement Wagner signed Oct. 26. The City Council voted Sept. 26 to have Wagner sign the agreement with FivePoint and transfer the title to the California Department of Veterans Affairs. Before he signed it, the agreement was posted on the city’s website.

“To have the council delegate this authority, which appears to be unlawful authority, to the mayor to negotiate and execute a major agreement without returning to the council and to the public is unprecedented and I believe contrary to the law,” Agran said.

Wagner called Agran’s claim “utter nonsense … we know we’ve had public input — plenty of public input.”

The agreement was on the website for at least a week “and there was not a single peep from anybody about it,” Wagner said.  

The lawsuit also alleges violations of environmental laws because the swap would let FivePoint transfer zoning entitlements of 812,000 square feet of research and development space, along with nearly 9,000 daily automobile trips to the original cemetery site near the Great Park.  Agran said the city didn’t do an updated environmental review that reflects the entitlements.

“I’m an environmental law specialist — the product of decades of action,” Agran said. “I’m not a novice in these areas so when I gave testimony and warned them, it’s because they were about to act in violation of state law.”

City lawyers told the City Council there’s no merit to Agran’s claims, Wagner said.

“We don’t think there’s any basis to it. Our lawyers have looked at and said there doesn’t seem to be any basis to it,” Wagner said. “Our lawyers have said we’ve followed the city’s municipal code and state law to the ‘T.’ Again, I think he’s grabbing at straws here.”

The Registrar of Voters is currently counting the signatures Pope, Agran and their supporters gathered. It is unclear what happens if the referendum lands on next November’s ballot and voters overturn the zoning ordinance in conjunction with Agran’s lawsuit.

Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at scustodio@voiceofoc.org.

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