Court Allows Lawsuit of Homeowners

In an Orange County case, the state Supreme Court on Monday strengthened the ability of homeowners and other citizens to challenge a completed development, ruling that they are entitled to extra time to bring suit against a project that “differs substantially” from the original construction plan.

By a vote of 4 to 3, the court said such challenges could proceed when developers fail to notify the public that substantial changes are going to occur in a project.

The justices allowed a group of Costa Mesa homeowners to go ahead with a suit against the operators of the Pacific Amphitheatre--an $11-million open-air stadium on the Orange County Fairgrounds.

The homeowners claim that for two years they have suffered from noise, traffic and an abundance of other problems that were not revealed in the original environmental impact report when the project was first planned in 1977.

Challenge Within 180 Days

They say that the development was first designed to seat 5,000 people on a six-acre site but that when it opened in 1983 it was built to seat 18,000 on a 10-acre site with a stage facing nearby homes.

Ordinarily, the law requires that challenges to public or private developments be filed within 180-days after commencement of the project. But the court held that the Costa Mesa group--or foes of any other project who miss that deadline--may still file suit later when there was no public notice the project had substantially changed.

“The lack of public notice that the (operators) had authorized these substantial changes compromised the goal of public participation in the environmental review process,” said Justice Cruz Reynoso, writing for the majority.

Reynoso said such suits could be filed within 180 days after the plaintiff “knows or should have known” that the project under way “differs substantially from the one described in the initial environmental impact report.”

‘Fullest Possible Protection’

That interpretation of the law met the Legislature’s intent that state statutes “afford the fullest possible protection to the environment,” he said.

Reynoso’s opinion was joined by Chief Justice Rose Elizabeth Bird and Justices Allen E. Broussard and Joseph R. Grodin.

In dissent, Justice Stanley Mosk, joined by Justices Malcolm M. Lucas and Edward A. Panelli, predicted that the ruling would “inevitably encourage numerous frivolous challenges to public or private projects” after the normal 180-day deadline. Trial courts, Mosk added, would face a dilemma in deciding what to do when an existing and fully operating project is successfully challenged under the justices’ new rule.

“What will be the ultimate result of these tardy lawsuits--court orders to tear down completed buildings?” Mosk asked.

Richard L. Spix of Westminster, attorney for the plaintiffs, Concerned Citizens of Costa Mesa, praised the decision.

‘Chance to Get Even’

“Developers have been getting around the political and environmental concerns of cities and other local agencies by providing them one plan originally and then when the project goes up it’s become something else,” he said. “This decision gives the public a meaningful chance to get even if a developer has not been fully truthful to a local board or agency.”

Said Russell Millar, president of Concerned Citizens of Costa Mesa Inc.: “We’re delighted. We tried for a long time to push the case to that level. Our attorney was confident that he had won the argument, so this is not a surprise but a very pleasant bit of information to receive. We look forward to the trial. We’re quite happy with the news and are telling our members about it.”

Jill Lloyd, a spokeswoman for the Orange County Fair and Exposition Center, also was not surprised by the court’s ruling.

“The issue has gone on for so long we are just anxious to have a decision be made,” said Lloyd, adding that she sympathizes with the citizens’ concerns about noise. “We are anxious to get it over with.”

Lloyd said that once the controversy is finally resolved in court, “the Concerned Citizens will know they did all they could and we did all we could.”

Asked for his reaction to the decision, Neil Papiano, attorney for the Nederlander Organization, owner of the amphitheater, said: “It certainly prolongs the litigation. But I think as I understand it they (the citizens) have a very hard burden to show that they didn’t know any of these things when the amphitheater was almost a year in construction and two years in the discussion stages with a lot of publicity about it.”

Work Started in ’83

State Deputy Atty. Gen. Dennis W. Dawson of San Diego, who represented the 32d District Agricultural Assn., the state agency that regulates use of the fairgrounds and was one of the defendants, declined comment pending further study of the opinion.

The agency prepared and presented an environmental impact report in 1977 and after a public hearing won approval from local authorities.

Work on the project began in February, 1983, and the first performance was held in July of that year. But it was not until January, 1984, that the group representing about 24,000 area residents brought suit against the agency and Ned West Inc., builder and operator of the theater.

The residents asked an Orange County Superior Court judge to issue an injunction requiring the operators to reduce the noise, provide free on-site parking and take other steps to comply with what they said was the original plan. But the judge dismissed the suit because, among other reasons, the action had not been filed within the 180-day limit.

Times staff writer Heidi Evans contributed to this story.