Foes of Slow-Growth Initiative Sue in Bid to Keep Measure Off June County Ballot

The Building Industry Assn. of Southern California, the Orange County Chamber of Commerce and the Commercial Industrial Development Assn. launched a court battle Thursday aimed at keeping the countywide slow-growth initiative off the June ballot.

Superior Court Judge John C. Woolley scheduled a hearing for March 23, about a week before the county is to begin printing ballots for the June 7 primary.

The initiative, called the Citizens’ Sensible Growth and Traffic Control Initiative, would link new development with acceptable levels of traffic and public services. It would require developers to improve or build roads to meet those levels.

The lawsuit filed Thursday contends that the initiative is too broad, unworkable and imposes unrealistic burdens on builders and developers.

‘Stop All Growth’

“This provision would undoubtedly stop all growth because the cost of improving public facilities to achieve compliance . . . is beyond the means of any developer,” said Don Steffenson, president of the Building Industry Assn. (BIA).

Tom Rogers, co-founder of Orange County Tomorrow, the group that drafted the slow-growth initiative, said, “Once again, it’s a despicable attempt on the part of the special interests to interfere with the people’s right to vote.”

Rogers recalled that County Counsel Adrian Kuyper concluded in a memo to the Board of Supervisors last year that the measure would probably survive court challenges, despite its wording.

Placed on Ballot

Faced with about 96,000 signatures on petitions calling for the initiative to be put to a countywide vote, the Board of Supervisors voted unanimously Tuesday to place the measure on the June ballot. A legal challenge by builders has long been expected.

The measure now has overwhelming public support, according to recent polls, as county residents become increasingly frustrated with choked freeways and streets.

The suit was filed after months of intermittent, unsuccessful negotiations between developers and initiative supporters.

BIA’s officials refused to speculate about the political impact of the lawsuit.

Even some opponents of the initiative have said the lawsuit could backfire by arousing voters if it finally makes the ballot despite court challenges.

A key argument in the suit is that the initiative conflicts with regional and state goals for housing and transportation.

By halting growth, the opponents argue, the county would actually increase traffic congestion by shutting off a big source of money for new roads: fees charged developers on their construction projects.

They also argue that--as housing became scarcer for the county’s burgeoning population--the poor would be excluded by high housing prices. That runs counter to state housing policy, the business groups contend.

‘Inequitable Solution’

The initiative “attempts a parochial and inequitable solution” to problems of growth, the opposing groups said in the suit.

That argument worked for the building industry in an earlier suit against Irvine. A judge barred an initiative from the ballot that would have effectively stopped construction of freeways through that city. The courts said the freeways would benefit the entire region and shouldn’t be held up by one city. That case is now before the state Supreme Court.

The suit also challenges the slow-growth initiative on several other broad legal grounds. It contends that the initiative unfairly penalizes developers of new homes and buildings for problems caused by earlier construction.

The initiative “makes future development the scapegoat for existing problems, even though future development admittedly is not responsible for such problems,” according to the suit.

And the initiative is so broad that supervisors would have to enact a law to implement it, the suit contends, which would be unlawful because “initiatives can only enact legislation, not direct a legislative body to do so.”

California courts have generally been reluctant to interfere with the initiative process, preferring to wait until the public votes on an initiative before hearing arguments against it.

“With some exceptions, the general principle is that the courts have hesitated to invalidate a measure before the people have had their say,” said Fredric Woocher, a lawyer representing a group of supporters of the Irvine initiative.

“It’s a waste of judicial resources if it doesn’t pass, but more importantly, they’re (judges are) just reluctant to interfere with the vote.”

But that judicial attitude is changing, said Alvin S. Kaufer, a lawyer hired to represent BIA in the suit filed Thursday. Kaufer’s law firm, Nossaman Guthner Knox & Elliott, also represents the association in the Irvine suit and has represented builders in other suits against slow-growth initiatives.

“The state Supreme Court has said that if part of an initiative is invalid, it’s a fraud on the voters to let them go ahead and vote on it anyway,” Kaufer said.

BIA, which represents 2,000 home builders in Southern California, said it didn’t know how much the lawsuit would cost. The group earlier established a legal defense fund of at least $250,000 for such cases.

The suit names Citizens for Sensible Growth and Traffic Control, the group supporting the initiative, as the “real party in interest.” In the Irvine case, the city took a neutral stance, so the citizens group has borne the costs of defending the initiative, Kaufer said.

Writ of Mandate Sought

Gregory A. Hile, the lawyer who is treasurer of Citizens for Sensible Growth and Traffic Control, appeared in court Thursday to oppose the lawsuit, which seeks a writ of mandate blocking the registrar of voters from placing the initiative on the June ballot.

Hile never got a chance to state his arguments, however, because the judge merely set a hearing date and gave BIA lawyers permission to exceed the court’s 15-page limit on legal briefs in support of their legal motions.

Peter C. Hoffman, the attorney who represented the BIA at Thursday’s court session, said he will show that a vote in June would be fruitless. He told Hile that court action could be averted if initiative proponents would agree to change the June election from a binding to an advisory vote.

Hoffman asked Hile to think about that proposal, but Hile immediately replied: “I’ve thought about it. No, we’re not interested.”

Rogers agreed later, saying: “The 96,000 signatures filed on behalf of the initiative was advice enough. We want to change the way the county does business, and an advisory vote will not have any effect on the Board of Supervisors.”

Rogers insisted that the BIA should list donors to its legal fund, arguing that contributions by developers to cover legal expenses are in effect political donations that should come under county and state campaign disclosure laws.

‘Political Considerations’

“The lawsuit is based on political considerations,” Rogers said. “Its sole purpose is to defeat the initiative.”

Assistant Dist. Atty. Michael R. Capizzi said he had never heard such a theory about money used to pay for a lawsuit, but added, “I would certainly want to know all of the details before expressing any opinion.”

Hile revealed Thursday that initiative supporters are going to formally incorporate a nonprofit legal fund to defend the initiative, but he said the fund doesn’t exist yet.

“I’m confident that we will prevail,” Hile said. “I’ve never believed that we would have any difficulty answering the kinds of arguments the BIA is raising.”

Judge Woolley gave Hile and Deputy County Counsel Edward N. Duran until noon March 17 to respond in writing to what was filed Thursday.

Duran said he believes the county registrar of voters, named as a defendant, won’t care about the outcome in court as long as ballots are printed on time. Ballot materials are scheduled to be shipped to the printer between April 1 and April 4.

But Duran, who is also defending the Board of Supervisors in the action, said he would have to consult board members during a closed-door executive session scheduled for Tuesday morning before commenting on the county’s official legal stance in the case.

Supervisors either declined comment or were unavailable Thursday.

Woolley had this to say from the bench: “I think you have a very interesting issue, gentleman. I think this is going to be an interesting case.”