Orange County Builders Lose Again : Appellate Court Refuses to Block Growth Initiative

A state appellate court in Santa Ana refused Friday to remove Orange County’s controversial slow-growth initiative from the June 7 ballot.

The ruling, by a three-justice panel of the 4th District Court of Appeal, was the second defeat in less than two weeks for the county’s powerful building industry, which sued to block the June vote on the measure. The justices said they found no clear evidence that the initiative is unconstitutional or conflicts with state law.

County Registrar of Voters Donald Tanney said he will not wait for a possible appeal of the ruling to the state Supreme Court to keep the measure on the ballot.

“I’m telling the printer to go ahead,” Tanney said. “If the Supreme Court rules against the initiative further down the pike, it’s easier to pull the initiative material from the ballot or just not count the votes than to wait any longer.”

Officials of the Building Industry Assn. of Southern California Inc., one of the plaintiffs in the lawsuit, expressed disappointment but said no decision will be made on whether to appeal until next week.

“We remain firmly convinced the initiative is misleading and does nothing to solve our traffic problems,” said Donald D. Steffensen, president of the trade association. “Indeed, it makes the traffic problem worse.”

The initiative’s supporters, an unusual coalition of liberal and conservative activists, said Friday’s ruling should help the initiative at the polls.

“It proves what we’ve been saying all along, that the initiative is a workable and effective way of dealing with the traffic problem,” said Norman Grossman, a Laguna Beach engineering manager. “We’re glad to be able to get on with the political discussion, rather than spending a lot of time in court.”

The initiative would limit construction in unincorporated areas of the county based on the ability of roads, parks and other public facilities to handle the extra traffic and residents.

The builders say the initiative’s stringent requirements would choke off construction in the county by requiring more than $1 billion to be spent to bring roads and other public facilities up to the measure’s standards before any new building could occur.

Constitutional Issue

In their lawsuit, the builders contend that the initiative is unconstitutional because it would unfairly require new construction projects to remedy traffic problems caused by previous development.

The builders also argue that the initiative conflicts with state law because it would shut down all development in the county.

Either would be sufficient reason to remove the initiative from the ballot as invalid, according to previous cases, but the flaw has to be indisputable.

A lower court judge said two weeks ago that the builders had not shown that to be true. The builders promptly appealed.

A recent poll commissioned by The Times showed that the initiative had strong support among voters.

The three appellate justices ruled unanimously Friday that they could not “disrupt the electoral process by preventing the exercise of the people’s franchise” without “some clear showing” that the measure is invalid.

Recent Rulings

After discussing two recent cases in which courts had removed initiatives from the ballot, Presiding Justice Harmon G. Scoville wrote: “None of the dire consequences or legal and practical problems apparent in the foregoing cases are present here.”

Scoville criticized the ambiguity of some provisions of the initiative, which he characterized as “hardly models of clarity.” And he said he would have liked more time to consider the case, which was expedited because of the need to print the ballot soon. But he said there was not enough evidence to prove the builders’ arguments.

“Although petitioners raise serious questions, invalidity of the measures is not patently obvious,” Scoville wrote.

The BIA, the Orange County Chamber of Commerce and the county chapter of the Commercial Industrial Development Assn. sued the Board of Supervisors last month after it bowed to public pressure and put the initiative on the ballot.

Earlier, nearly 96,000 petition signatures were gathered in the successful effort to certify the measure for the ballot.

A partnership led by the Lusk Co., an Irvine home builder, also has sued the city of San Clemente over a similar initiative on that city’s ballot.

The supervisors, all of whom have criticized the initiative individually, elected to stay neutral in the court battle. The initiative has been defended in court by lawyers for the citizens group sponsoring it, Citizens for Sensible Growth and Traffic Control.