Builder Out to Block Vote on City Growth : Pardee Wins Court Delay on Claim of Invalid Signatures on Petitions

Opponents of a controversial initiative designed to prevent urban sprawl filed a lawsuit Friday charging that the measure should not be placed on the November ballot because the initiative petitions were invalid.

In response to the suit filed by attorneys for the Pardee Construction Co. and Michael Madigan, a Pardee executive, Superior Court Judge Mack P. Lovett issued a temporary restraining order preventing the city from verifying the petition signatures or placing the proposal on the ballot pending the outcome of a July 9 court hearing.

Lovett’s order also forbids the city to spend a $92,000 bond that Pardee posted on Friday that could be used to pay for a name-by-name verification check of the signatures until after the July 9 hearing.

The initiative, promoted by a grass-roots coalition billing itself as San Diegans for Managed Growth, is aimed at halting development in the city’s designated “urban reserve,” a 20,000-acre area in north San Diego that the City Council has set aside for development after 1995. Under the initiative, a majority vote in a citywide election would be necessary to remove land from the urban reserve designation.

San Diegans for Managed Growth turned in petitions containing more than 74,000 signatures earlier this month. A random sample of 5% of the signatures by the county registrar of voters office later determined that the petitions included more than the 51,978 valid signatures--10% of the number of registered voters at the time of the last city general election--needed for the measure to be placed on the ballot.

However, the suit filed Friday alleges that the petitions themselves were invalid because signers were requested to list their “address as registered” rather than their “place of residence,” the phraseology used in the municipal code.

While officials of San Diegans for Managed Growth characterized the difference between those two phrases as a minor, inconsequential semantical question, attorneys for Pardee referred to it as a “fatal flaw (that) . . . goes to the heart of . . . the integrity of the whole initiative process.”

“The distinction between ‘residence’ and ‘address as registered’ is crucial because the clerk and the registrar must compare the signator’s residence with his or her address as registered to vote to determine if the signator is a qualified elector,” attorney James R. Parrinello wrote in the lawsuit.

For example, a voter who moves from the last address where he was registered to vote is not qualified to sign the petition unless he re-registers or notifies the registrar’s office of his change in address, Parrinello said. However, the phrasing of the instructions on the initiative petitions makes it impossible to detect such invalid signatures, the attorney added.

David Kreitzer, chairman of San Diegans for Managed Growth, said that he was not surprised by the lawsuit “because I expected them to look for any legal technicality they could.”

“But I am surprised that they went after such a minor, minor thing,” Kreitzer added. “They’re just nipping at our heels. I can’t believe that a court would disqualify an initiative that gathered this many signatures on something like this.”

Jay Powell, conservation coordinator of the local Sierra Club, one of the groups supporting the initiative, also pointed out that the instructions concerning the signers’ address were “covered two ways” on the petitions.

A copy of the petitions submitted as part of Friday’s suit shows that signers were asked to list their “address as registered” beneath their signatures. However, a statement asking signers to confirm that they “have correctly written (their) place of residence and date of signing after (their) name” also appears at the top of each petition.

“This thing hardly seems to be a ‘fatal flaw,’ ” Powell said. “It just shows how desperate they are at this point.”

Stuart H. Swett, a chief deputy city attorney, cited the text at the top of the petitions as evidence of “substantial compliance with the law, because the signers are certifying in one place that this is their place of residence.”

However, Madigan, Pardee’s senior vice president for development, argued that the phrasing of the petition instructions “poses a serious question,” adding, “Because this proposal is not reasonable and is not fair, we’re obligated to avail ourselves of whatever process is available to seek redress.”

Proponents of the initiative argue that the measure is needed to reinforce the city’s growth-management policy, which is intended to channel growth to existing neighborhoods while postponing growth in undeveloped regions in the northern half of the city until later this century. Since 1979, the City Council has approved exceptions to that policy permitting development on more than 7,500 acres originally designated as “urban reserve,” Kreitzer said.

Opponents, however, argue that the initiative would unfairly restrict development even after 1995 by requiring public approval of any project in the so-called “future urbanization” zone.

“This would thwart the ability of the council to make land-use decisions even in the post-1995 period,” Madigan said. “That goes beyond the growth-management plan. If they had stuck to the plan, they might well have had a supporter in Pardee.” The firm owns about 2,000 acres in the urban reserve area, according to the suit.

The council is scheduled to discuss the proposed initiative on July 8, one day before the court hearing. Swett noted, however, that Friday’s action does not preclude the council from “taking preliminary steps toward placing (the initiative) on the ballot.”

“If the petitions are ruled valid, the council could be ready to go,” Swett said. Indeed, even if the court ruled that the petitions were invalid, the council has the authority to put the measure on the ballot. However, even supporters of the initiative question whether they have the backing of enough council members for the proposal to qualify for the ballot via that legislative route.

The $92,000 bond posted by Pardee was made in accordance with a city law requiring anyone who challenges the validity of an initiative petition random sample to pay for the cost of verifying each signature. However, Pardee officials argue in the suit that the fee is “arbitrary and capricious,” prompting their request that the money not be spent until after Lovett rules on the validity of the petitions on July 9.

Describing the $92,000 fee as “unconscionable” and an “abuse of discretion,” Parrinello also contended that Pardee officials originally had been told that the cost of verifying individual signatures would not exceed $60,000. However, Keith Boyer, the county’s assistant voter registrar, estimated Friday that the verification process would cost about $1.25 per name, which would make the total cost of checking the 74,000-plus signatures about $92,000.

If Lovett rules that the petitions are valid, Pardee’s only remaining legal avenue to attempt to keep the growth-management initiative off the ballot would be to authorize use of the $92,000 fund to pay for the name-by-name verification in the hope that enough invalid signatures could be detected to disqualify the measure. However, the prospect of uncovering that many invalid signatures appears slim, because the random sample projected that the number of valid names totaled 58,679. That is 6,701 more than needed.

“That’s a decision we’ll have to review at the time,” Madigan said. “We’d have to decide whether the possible effect would be worth the money expended.”

Dean Klampe, an elections officer in the city clerk’s office, said that July 29 is the last possible date for the City Council to decide to place any initiative on the November ballot.