Developers Attack Initiative Process

Fed up with anti-growth measures like San Diego’s Proposition A, developers are quietly launching an assault on the cherished initiative process that began in California 75 years ago.

The builders are pushing a number of measures that would either make it easier to invalidate voter-approved anti-growth measures in court or make it harder for environmentalists and others to halt or delay developments by challenging local entities’ general plans.

Bill Favors Developers

Assemblyman Gil Ferguson (R-Newport Beach) said he had little contact with building industry lobbyists and had never even heard of the growth-control initiative approved by 56% of San Diego’s voters last November, when he introduced what he calls his “American dream” bill last week.

But the Orange County Republican, who has long advocated relaxing legal impediments to development, said his bill, like two other measures builders are suggesting, is designed to give developers an upper hand in court cases.

In recent years, builders have fared far better in court than they have in local elections.

San Diego County voters overwhelmingly approved Proposition A, considered one of the most far-reaching growth-control measures ever proposed in California, despite more than $600,000 spent by developers in their unsuccessful campaign.

The measure requires voter approval for any development in the 52,000-acre “urban reserve” along the city’s northern fringe designated in the City Council’s 1979 Growth Management Plan.

In Solano County, voters narrowly approved a June, 1984, measure restricting growth to existing urban areas, although opponents outspent backers about 10 to one.

Similarly, voters in Orange County soundly rejected a 1984 sales tax increase to finance growth-inducing transportation improvements, despite a 16-to-one spending advantage by a pro-tax campaign bankrolled by developers.

“The building industry has been unhappy with those results,” said Paula Carrell, the Sierra Club’s Sacramento lobbyist.

1911 Amendment

“They just wish citizens would stay out of land-use decisions,” Carrell added. “That is really what they are saying. It goes to the core of democracy.”

California voters gave themselves the right to enact laws at the ballot box in a 1911 state constitutional amendment. Today, leaders of environmental coalitions that have successfully fought developers in election campaigns in San Diego and elsewhere say the new legislative effort by builders to reverse 75 years of citizen-based lawmaking and make courts a major battleground comes as no surprise.

“It is to be expected that when we play by the rules and go to the people and win . . . they try to change the rules,” said Jay Powell, conservation director for the San Diego County Sierra Club chapter.

Powell said voters in San Diego and elsewhere will be offended if they “recognize the builders’ new strategy as an attack upon their will.” But he predicted that pro-development forces will likely sponsor several bills besides the one already introduced by Ferguson, hoping to enact one of them “as some kind of reasonable compromise.”

Indeed, a California Building Industry Assn. (BIA) publication widely circulated among lawmakers in recent weeks outlined potential legislative approaches to counter “initiatives which indirectly close down growth.”

While they would like to devise a means of keeping such measures off local ballots, the BIA issues paper acknowledges that it would be politically “unrealistic.”

‘Low-Probability Event’

Legislators and the Deukmejian Administration “are kind of reluctant on that,” Don Collin, a BIA lobbyist in Sacramento, said in an interview.

Distasteful as such measures might be to developers, halting anti-growth initiatives altogether “is a low-probability event,” said Collin.

“The one bill that got through last year,” a measure intended to invalidate a proposed initiative regarding a planned trash-to-energy plant in San Marcos, was vetoed by Deukmejian, Collin noted.

But the BIA issues paper said there are ways to amend the state’s Evidence Code to aid builders and others who challenge such initiatives once they are passed.

One way would be to create a burden of proof on cities that an anti-growth ordinance enacted by their voters would have no impact on the area surrounding those cities or on the state as a whole, the paper pointed out.

Earlier this year, in a lawsuit to which the BIA was a party, an appellate court said a citizens’ group in Irvine could not force an initiative to block a builder-fee financing program for three proposed new Orange County freeways because those roads are of “obvious statewide concern.”

Sierra Club Opposition

Builders would like to enact a law that would make all initiatives affecting growth subject to a similar test--after the fact.

San Diego City Atty. John Witt said “it would be pretty hard” to defend Proposition A if the Legislature does enact such a test.

“Obviously, we are going to oppose that kind of legislation,” said Carrell of the Sierra Club.

Collin acknowledged that he held discussions with legislators about such a bill, but so far no one has introduced a measure.

“Nobody stood on their chairs over there and cheered,” said Collin. “But I ran it up the flagpole.”

But builders do have an ally in Ferguson, who likened anti-growth measures to “lynch mob voting.”

“They used to get enough people in favor . . . and they would lynch a person. Now they get enough people to vote to take away a person’s property rights, and they do it,” said Ferguson. “It is not much different. . . .” Ferguson said this is the first generation in the United States for which home ownership is a largely unattainable goal, and he called his measure the “American dream” bill because it is intended to drive down the cost of housing. Anti-growth measures, and environmental controls in general, drive up the cost of housing, he said.

His bill would nullify any local ordinance that limits the development of housing unless it is “necessary to achieve a vital and pressing governmental interest.”

Admittedly a Difficult Test

San Diego would have to prove, for example, that Proposition A was necessary to assure the “availability of adequate sanitary, sewer, water, street, parking utility and other public capital facilities.”

Admittedly, said Ferguson, it is a difficult test intended to assure that development forces prevail.

Ferguson said the idea for the measure grew out of the 1980 White House Commission on Housing. He said a model for the bill was drafted last year by a University of San Diego symposium chaired by law professor Bernard Siegan.

Although the measure has already “startled everyone and is causing an uproar,” Ferguson said it neither takes away initiative rights nor does it “take away a single environmental law.”

But Ferguson said he expects heavy opposition by the Sierra Club and other groups.

Powell said the pro-growth advocates are guilty of hypocrisy. For years, he said, the same people have been “screaming about the Coastal Commission,” saying the watchdog planning panel was usurping local control.

“Now they see it going the other way . . . and they try to impose these things from the state level.”