Could Gut Growth Management : City Hurries to Assess Key Land-Use Ruling

With three growth-management plans pending before the San Diego City Council, city officials were scrambling Tuesday to assess the effect of a U.S. Supreme Court decision concerning property rights vs. governmental regulation.

City Atty. John Witt said he will assemble his land-use staff this morning to begin a review of the high court’s decision in a case involving the First English Evangelical Lutheran Church seeking compensation from Los Angeles County for having prohibited construction on church-owned land in a flood plain. The court said property owners should be compensated in such cases.

Witt said he hopes to have a report to the council by Friday on how the decision could affect the city’s growth debate.

The council is considering competing growth-management plans devised by Mayor Maureen O’Connor, Councilman Ed Struiksma and an environmental coalition involved in the successful passage of Proposition A, the Managed Growth Initiative, in November, 1985.

The council will hold a public hearing on the plans at 7 p.m. on June 22 at Golden Hall.

“I can’t believe we won’t be able to manage growth,” Witt said. “But (state Atty. Gen.) John Van de Kamp noted that there is language in the opinion by Justice (William) Brennan that says municipal planning will be much more difficult but that this is the price we must pay for having a Constitution.”

Tim O’Connell, an assistant to the mayor for planning matters, said he does not believe that the decision will block the council from tightening the growth-management plan or adopting an interim ordinance to slow growth while the General Plan is overhauled.

O’Connell, an attorney, said his reading of the decision indicates that it applies only to cases where governmental regulations strip a property owner of any use for his or her property, a rare occurrence.

“I just don’t see this as having much impact,” O’Connell said. “The court said this case was ‘ripe’ for a decision because a lower court had already ruled that a ‘complete taking’ of the property had occurred, as opposed to a partial diminution in value.”

He added that he sees nothing in the decision that requires government to help a property owner realize the highest possible profit by not restricting or delaying the kind or amount of development.

But Louis Wolfsheimer, a prominent land-use attorney and former chairman of the city Planning Commission, warned that “100 attorneys may have 100 different opinions” on the fine points of the decision. He said he had not read the court’s opinion and was basing his comments on news stories.

He said his firm has already begun hearing from clients wondering how their land-use cases will be affected.

“This is obviously one of the most important land-use law decisions in 30 years,” Wolfsheimer said. “Land-use attorneys have long wanted the court to deal with the issue of whether long-term and short-term withholding of (property) rights must be compensated.

“The Supreme Court has dodged the issue for years, and now it has spoken. It’s going to be very significant in terms of things like building moratoriums.”

In 1980, the Supreme Court dodged the issue of whether San Diego should compensate San Diego Gas & Electric Co. for banning development on a 240-acre parcel owned by the company at Los Penasquitos Lagoon. The court sent the issue back to the trial court for further litigation.

In 1986, the city and SDG&E; reached an out-of-court settlement under which the state would purchase 200 acres of the site for $2.25 million and the city would pay $225,000 for 25 acres.