Suit Is Latest of Nationwide Challenges to Growth Limits
When Superior Court Judge John C. Woolley takes the bench in his Santa Ana courtroom Wednesday, the papers will be stacked high and a small army of lawyers will be poised to do battle over the fate of the countywide slow-growth initiative.
At issue is whether the Citizens’ Sensible Growth and Traffic Control Initiative is of such questionable legality that the public should not be allowed to vote on it, even though 96,000 registered voters signed petitions to get it on the June 7 ballot.
Lawyers for the Building Industry Assn. of Southern California will argue that the initiative illegally:
- Prevents the Board of Supervisors from making its own decisions.
- Results in an unconstitutional denial of developers’ rights without compensation.
- Violates state policies encouraging construction of low- and moderate-income housing.
- Unlawfully ignores regional problems, such as long automobile commutes into job-rich, house-poor Orange County from Riverside and San Bernardino counties.
Attorneys for the city of Irvine and the group of slow-growth activists that mounted the petition drive to get the measure on the ballot will counter that court challenges to the measure are improper until after the election. Builders’ speculative claims about the harm they and home buyers may suffer because of the initiative are insufficient to deny people the right to vote on it, they will argue.
Latest Legal Battle
The debate is likely to be heated, but the battle is not new. The BIA lawsuit that is forcing Wednesday’s hearing is only the latest skirmish in a decades-old, nationwide legal war over how far growth controls can go.
Both sides have indicated that they will appeal if Woolley rules against them, and everyone involved says litigation over the initiative--which would condition future growth on the ability of roads and public facilities to handle it--will drag on for years.
About 1,700 communities in the United States now have some kind of growth control, according to environmental groups and building associations that monitor such matters. Most--but not all--have survived court challenges.
Last year, developers in Colorado challenged Boulder’s 2% annual growth limit in court and lost. The developers claimed that the ordinance, which had replaced a more restrictive measure passed as an initiative in 1978, trampled on people’s right to live where they want.
The same argument failed more than 10 years ago in challenges to a similar growth cap adopted by Petaluma, north of San Francisco.
“The judge just kicked us out of court, saying our case lacked merit,” said James Leach of Boulder-based D.L. Development Co. “But we may appeal the ruling. We haven’t decided yet.”
Boca Raton Case
Developers have won a few victories over the years.
In the 1970s, residents of the wealthy community of Boca Raton, Fla., were fearful of Arvida Development Corp.’s plans to build a large new project that combined a light industrial park with housing. After a petition drive, the citizens voted for a 40,000-unit growth limit, provoking a 10-year, $5-million court fight that Arvida won in 1984 in the U.S. Supreme Court.
Arvida claimed successfully that its project was inherently reasonable and that Boca Raton’s ordinance was a ruse to keep out “undesirables”--middle- and low-income residents.
Marie York, the city’s economist and growth management planner, conceded in a 1985 speech to the Urban Land Institute that the growth ceiling had been unconstitutional.
Limits Called Elitist
“I personally have had a problem with the exclusionary aspect,” York said. “If every community chose to emulate Boca Raton, most of us would not have a place to live.”
When Mt. Laurel, N.J., began levying impact fees, adopted restrictive zoning ordinances and canceled an affordable-housing program, the NAACP sued, and the New Jersey Supreme Court ruled in 1975 that the town’s actions were unconstitutionally elitist. And in 1983 it ruled that the town had failed to remedy the situation.
The concepts in the Mt. Laurel cases are often repeated in California, where some builders’ lawsuits--including the BIA’s in Orange County--allege that growth controls are nothing more than a disguise for “exclusionary zoning.”
“That’s at the heart of our case,” said Jim Erickson, a lawyer representing the BIA. “Some of the initiative backers are very elitist.”
But Belinda Blacketer, a lawyer for the slow-growth group behind the initiative, strongly disagrees. “It would be elitist if the initiative were arbitrary, but it’s not. It’s based on sensible, reasonable requirements that most reasonable people would say are fair. The builders just don’t like anyone telling them what to do.”
Policy Conflict Seen
Written arguments filed in the lawsuit by the BIA lean heavily on claims that state law mandates consideration of regional needs, that state policy requires more affordable housing and that the slow-growth initiative is at odds with both of these goals.
In a case that has become a cause celebre in California, the BIA used similar arguments in a bid to invalidate a 1981 growth-control initiative adopted by voters in Camarillo in Ventura County.
After contradictory decisions in the lower courts, the California Supreme Court refused in 1986 to strike down the Camarillo measure. But the court cautioned that such initiatives must take into account effects on the surrounding region.
“After considerable thought, we have decided not to pursue the case further” to the U.S. Supreme Court, said Paul Tryon, executive director of the BIA’s Ventura County chapter. “That lawsuit has been settled with us for $100,000. We decided to save our resources in order to challenge another growth-control measure adopted by Moorpark (near Simi Valley) last November.”
Other Court Cases
Tryon said part of the BIA’s reasoning was that Camarillo’s growth controls expire in 1991. “A victory at the U.S. Supreme Court would almost come too late to do any good,” he said, “and it would cost too much money.”
Several growth-control cases are awaiting court action, including lawsuits by three firms seeking to overturn San Clemente’s 1986 slow-growth initiative, which limits construction of housing units to 500 a year.
But lawyers on both sides of the slow-growth controversy now have their eyes on Walnut Creek, a city of 60,000 across the bay from San Francisco. Last year, a Superior Court judge invalidated a growth-control initiative approved by voters in 1985, saying it was inconsistent with parts of the city’s general plan that encourage growth.
Case on Appeal
The judge ruled that the measure, which restricts development by requiring that traffic must flow at current or improved levels, was invalid even though the City Council rewrote the general plan after the election to conform to the initiative.
The case is now on appeal, with oral arguments scheduled for June.
Walnut Creek Mayor Ed Skoog, part of a slow-growth majority that recently took control of the council, said the court challenge is all but meaningless now.
“We have an interim ordinance that has put a freeze on development until we get the general plan rewritten again,” he said, “and the new version is tougher than the ballot measure.”
The court challenge has been led by newspaper publisher Dean Lesher, who could not be reached for comment.
