Witt Says Lawsuit Against IDO Poses a Potential Threat to City

City Atty. John Witt said Thursday that the latest lawsuit filed against the city’s landmark interim development ordinance is “the first major challenge” of the law’s constitutionality and could result in the city paying damages to every developer whose projects were stopped by the slow-growth ordinance.

“If they were to prevail and overthrow the IDO, then under current state and federal law there would be the potential for . . . damages for temporary taking (of land) for every development in town stopped by the IDO,” Witt said.

But the lawyer who filed the suit on behalf of Avco Community Developers Inc. said the legal action is not an attempt to overturn the ordinance and would have no applicability beyond his client’s 192-unit development on La Jolla’s Mt. Soledad.

“We are not seeking to have the IDO overturned,” said David Mulliken, Avco’s attorney. “We are seeking to have it declared invalid as applied to our project--period, end of case.”

The interim development ordinance, approved last July, capped development in San Diego at 8,000 homes during the 18-month period beginning last Aug. 21. It exempted some communities from the cap and gave the San Diego City Council the power to exempt other projects on a discretionary basis.

Avco filed suit Wednesday in U.S. District Court against the city and the council in an attempt to win permission to go ahead with its Ridgegate development in La Jolla, where the IDO limits growth to 25 homes per year. The council turned down Avco’s appeal for an exemption March 15.

The suit contends that the city, in denying Avco the right to build, has effectively taken the developer’s land and is depriving the firm the use of its property. It seeks exemption from the IDO and $250,000 a month in damages from the city.

“As applied to Avco, has (the IDO) resulted in an unconstitutional deprivation of property rights?,” Mulliken asked. “We believe that it has.”

Mulliken’s firm has filed two other suits on behalf of developers seeking relief from the IDO. The first resulted in a settlement allowing Wolf Industries Inc. to proceed with construction of the Camino Bernardo development off Interstate 15. The second is still pending.

‘First Major Challenge’

Witt said that Avco’s suit is a different matter because it challenges the constitutionality of the IDO. “This is the first major challenge,” he said. “It’s a challenge of the IDO itself.” Other developers, Witt said, “were looking to be exempted from the requirements of the IDO and get their projects approved.”

Witt emphasized that the IDO is legally defensible, but said that if Avco prevailed in its lawsuit, the city theoretically could be forced to pay damages to every developer whose projects have been stopped since August.

According to Thomas Farrar, the senior planner in charge of the IDO, the ordinance has held up the construction of 15,497 housing units since Aug. 21.

A win for Avco would also allow developers denied building rights to resume the process of obtaining approval for their projects without being subject to the IDO, Witt said.

Even if Witt’s interpretation of the lawsuit is correct, a court challenge of the IDO would be very difficult to win, said Kim Kilkenny, legislative counsel for the Construction Industry Federation. Numerous state court decisions have backed up municipalities’ right to slow development, he said.