Setback for Irvine Group : Judge Rules Out Proposal for Vote on Freeway Fees

A judge’s ruling Thursday left it to the Irvine City Council and not the city’s voters whether to approve a plan for financing freeways through development fees.

In a major setback for Irvine freeway foes, Orange County Superior Court Judge Judith M. Ryan ruled invalid a proposed citizens’ initiative that would have required a citywide election on new taxes and fees to pay for freeway construction.

Council Vote Forestalled

Ryan’s decision came only hours before an Irvine City Council meeting and forestalled a council vote on whether to adopt the initiative as an ordinance or place it on the Nov. 5 ballot.

At issue was a proposed developer-fee program that would raise nearly half the costs of building new freeways in the San Joaquin Hills, Foothill and Eastern transportation corridors through assessments on new homes and commercial development.

The proposed ballot initiative, which was called the “Citizens’ Right-to-Vote Ordinance,” would have required that all fees and taxes assessed to build new roads and freeways first be voted on by Irvine residents.

The council now must decide on its own whether to participate in the transportation-fee program that will finance the controversial freeways. Even if the initiative is reworded, it will not be on the November ballot because today is the filing deadline for initiatives to be included in that election.

“I’m really shocked that we lost,” said Jean Hobart, an attorney for Councilman Larry Agran, who helped draft the ballot initiative. “But I’m sure that there are a lot of voters that felt they were disenfranchised.”

A coalition of more than 1,400 businesses that support construction of the freeways filed a suit July 26 to stop the council from voting on the ordinance, contending it was illegal. Although Superior Court Commissioner Ronald L. Bauer refused last month to stop the council from voting on the ordinance, he scheduled Thursday’s hearing on the legality of the proposal.

Ryan heard about 90 minutes of arguments by attorneys on both sides of the issue Thursday morning, then said she preferred not to make a decision until after the City Council had acted at its scheduled evening meeting. If she ruled before the meeting took place, she said, the court would have been acting in an “advisory” manner toward the legislative body--which would have violated the constitutional principle of separation of powers.

But by late afternoon, Ryan apparently had changed her mind. She notified both sides of her decision by telephone but could not be reached for further comment.

James E. Erickson of the Building Industry Assn., part of the coalition that filed the suit, said that his office received a call from the judge shortly after 5 p.m.--an hour before the scheduled council meeting--saying she had decided the initiative was invalid.

“All we have is a phone call from the judge,” Erickson said Thursday night. “She has not yet given any reasoning.

“Her decision was to grant what we had asked for. The Irvine City Council can’t adopt it (the initiative), and it can’t be submitted on the November ballot as an initiative. I’m not surprised, but I’m pleased.”

Ryan’s decision was announced to the council as it gathered for the 6 p.m. meeting by City Atty. Roger Grable.

“The judge called me at my office at 5:30 and advised me that the writ of mandate has been upheld,” Grable told the council. “Therefore the City Council is under a court order not to adopt the ordinance or to put it on the ballot.”

James Johnson, president of the Committee of Seven Thousand which spearheaded the petition drive, said afterward that while the organization has suffered a temporary setback, foes of the freeway fee plan will regroup for a second attack.

“We’re going to huddle and see what we’ll do, but this is not the end,” he said. Although no plan of action can be drawn up until after the committee’s attorneys are able to examine Judge Ryan’s ruling, Johnson said the group will consider both an appeal of the ruling and a second petition drive.

Irvine Mayor Dave Baker, however, lauded the ruling, saying that it validated the authority of the City Council to levy fees to pay for road work and other development.

“The issue wasn’t the people’s right to vote, but the city’s right to use fees to pay for new development,” he said. “I believe the City Council has the authority to assess fees to pay for road work to benefit the city.”

“If the people are informed properly there is no question that they will support the developer fees,” Baker said, outlining a plan to bring both supporters and opponents of the corridor plan together “in an attempt to constitutionally address the issue.”

The end result of that meeting, he said, could be an “advisory ballot” that could allow Irvine voters to express their opinions in a non-binding manner. “I have great confidence that the people can decide this, but the ultimate authority rests with the City Council,” he said.

Unconstitutionality Claimed

In filing suit in July, the coalition of businesses argued that the ballot initiative was unconstitutional because state law gives the City Council, and not the public at large, the authority to decide on new road and freeway fees.

“The government code permits a fee to be charged to finance a regional transportation system,” Alvin Kaufer, attorney for the business coalition, said during the Thursday hearing. “We suggest that this is an authority given the City Council to impose these fees--just the City Council. That authority cannot be delegated to the voters.”

But Hobart, the attorney for Councilman Agran, argued that the assessments in question are fees, not taxes.

Imposing taxes, she acknowledged, is an administrative power that only a governmental body can wield. But a decision to impose fees is a legislative one--one that the voters have the right to decide, she argued.

“We are not trying to stop the City of Irvine from imposing taxes for the operation of the city,” Hobart said. “We believe this (ability to impose fees for transportation) is a legislative power.”

At the end of the hearing, Ryan said she would not decide on the constitutionality of the initiative, but only whether the voters at large had the power to vote on fees to finance transportation costs.