Still reeling from the San Diego City Council's adoption of a tough residential housing limit, local building industry officials charged Wednesday that City Manager John Lockwood has overstepped legal bounds by stopping the issuance of some building permits even though the ordinance has not yet taken effect.
Although the controversial restriction is not scheduled to officially become law until at least Aug. 21, Lockwood, seeking to head off what one councilman predicted would be "an Oklahoma land rush" in the interim, has announced that the city will stop issuing some building permits applied for since April 29 as the first step toward implementation of the new growth limit.
From the perspective of developers and building industry representatives, however, Lockwood's decision has conferred premature legal status on a council action that, technically, still is not law. A legal challenge to the city manager's action is possible, they added.
"The problem is that the city manager is treating something that isn't yet a law as if it were already a law," said Robert Morris, executive vice president of the Building Industry Assn. "I'm sitting here wondering how in hell you can not process building permits . . . because of an ordinance that hasn't even been finally adopted. It seems to me that the city manager has clearly gone beyond the scope of what the City Council authorized."
City Atty. John Witt, however, has advised Lockwood that he is "on solid legal footing" in his approach toward the residential development restriction that the council approved early Tuesday morning after a 7 1/2-hour meeting. Under the limit, which is to be in effect for 18 months, developers will be allowed to build only 8,000 units in the next year--a reduction of almost 50% from the 15,000 homes built in 1986.
The city manager has "administrative authority," Witt said, to delay the processing of some building permits while city officials begin planning how to implement the new Interim Development Ordinance. Witt conceded, however, that disagreements on that point are "not only possible, but likely."
"I'm not going to tell you this is a slam-dunk, because it isn't," Witt said. "But this gives us something that we could base our arguments on if it comes to that. I think the city is operating within its proper authority as long as the delay isn't an unreasonable one, and the period involved here isn't excessive. But questions like that . . . are what lawsuits are all about."
The dispute over the city manager's policy emerged as environmentalists, council members and builders continued to debate the impact of the potentially revolutionary ordinance, which building industry spokesmen said made San Diego the largest city in the nation to adopt such strict growth controls.
While slow-growth advocates have hailed the measure as the most significant step in the city's history to restrain what they view as "runaway" development and avoid Los Angeles-style urban sprawl, builders warn that the council's vote will lead to dramatically higher housing costs and unemployment.
The temporary ordinance is designed to serve as a holding action on development while the council tackles the difficult task of updating the city's 1979 Growth Management Plan, which sought to focus development in existing inner-city neighborhoods while postponing construction in undeveloped areas until later this century.
An unanticipated byproduct of that plan, however, was traffic congestion, overcrowded schools and inadequate public facilities in existing neighborhoods. Growing public discontent over that situation prompted Mayor Maureen O'Connor to appoint a 27-member citizens' task force to update the 1979 plan.
That task force recently recommended an emergency ordinance--which would have taken effect immediately--authorizing 9,300 units to be built citywide, setting the stage for this week's lengthy council debate that concluded with its approval of the 8,000-unit annual cap.
At the time of its 8-1 vote early Tuesday morning, with Councilman Bill Cleator dissenting, the council established broad outlines for the development limit but left many specifics unresolved, instructing city staff members to report back on July 21 with an implementation plan.
If the council approves the ordinance in its final form on that date, it would become effective 30 days later, on Aug. 21, according to city attorneys.
The two-month gap between Tuesday's vote and the Aug. 21 effective date was expected to precipitate a flurry of building permit applications from developers hoping to escape the 8,000-unit restriction.
"There will be an Oklahoma land rush, no question," Councilman Mike Gotch predicted.
Lockwood, however, appears to have precluded that possibility by putting a hold on approval of some of the permits sought after April 29, the date when O'Connor and Councilman Ed Struiksma--potential rivals in next year's mayoral race--held separate news conferences calling for new controls on growth. During the council's debate, O'Connor emphasized that she considered the proposed ordinance to be retroactive to April 29.
Construction industry officials and others questioned Wednesday whether Lockwood has overstepped the council's action by moving in a direction that could alter the normal building permit approval process prior to Aug. 21, or whenever the ordinance ultimately takes effect.
Prominent land-use lawyer Paul Peterson argued that the city manager's policy "has created a de facto emergency ordinance"--one that takes effect immediately, rather than 30 days after final approval--even though the council did not classify its action as such.
"I see no legal basis for the city to refuse to issue building permits at this point, because the ordinance is not effective," said Peterson, who frequently appears before the council representing developers. "Right now, the city has no justification for interfering with business-as-usual. In my view, to thwart the normal building permit process is akin to taking the law into your own hands."
Lockwood stressed Wednesday that he does not intend to "put an across-the-board stop" on the issuance of all building permits sought after April 29. Noting that the council has exempted certain areas of the city from the ordinance, including Tierrasanta, Otay Mesa, parts of Southeast San Diego and areas along the San Diego Trolley line, Lockwood said that applications involving those areas will be processed normally.
However, post-April 29 applications dealing with other areas will be "held up while we sort out exactly where we are," Lockwood explained. Until the ordinance becomes effective, new applications will be accepted but not acted on unless they are for proposed developments in the exempted areas, city officials added.
"Admittedly, I'm trying to comply with the council's directive," Lockwood said. "And the first thing we have to do is figure out whether the various applications in the pipeline are in the exempted areas or will come under the (ordinance) . . . We've got to figure out where we are before moving ahead."
O'Connor's press secretary, Paul Downey, also argued that a "temporary hold" on some permit approvals is necessary to insure that the intent of the development restriction is not "seriously undermined before it even takes effect."
"If thousands of new permits went through over the next couple months, the council's 7 1/2-hour meeting the other night would be for naught," Downey said.
Lawyer Peterson said he finds that motive "perfectly understandable" from the city's standpoint, but argues that the city "presently has no legal basis for holding the line."
"What we seem to have is the city manager implementing something that hasn't taken effect and without the council's approval," added BIA official Morris.
City attorney Witt responded that Lockwood "seems to be very much in step . . . with what the council has in mind."
The ordinance's approval is not expected to curtail San Diego's housing boom for at least several years, because permits have already been issued for 16,679 dwelling units that will not be affected by the new restrictions.
City Planning Department officials said Wednesday that, as of June 15, applications for more than 8,100 units were pending before the city planners. But the officials said that they had not yet calculated the number of applications received after April 29.
In the meantime, while the two sides vehemently disagree over the propriety of Lockwood's action, they can at least agree on one point concerning a dispute that may eventually be settled, not at City Hall, but rather in court.
"It sounds like full employment for the lawyers to me," Peterson joked.