Lawyers Fighting Slow-Growth Find Ruling in Nollan Case Not Yet Helpful : REAL ESTATE

A recent U.S. Supreme Court ruling--which some lawyers thought might be used to expand the rights of property owners--hasn’t worked so far in the court fight against Orange County’s slow-growth initiative.

Called Nollan vs. California Coastal Commission, the case involved a Ventura County couple who applied for a permit to build a new, larger home on their beachfront lot.

The Coastal Commission insisted that the Nollans permit a public easement across their property before they could build.

Less than a year ago, the Supreme Court decided in favor of the couple, ruling that the commission’s requirement was unconstitutional since the Nollans’ house didn’t block public access to the beach. Conditions imposed on a building project, the court said, must be direct responses to problems caused by the project.

Recently, lawyers for the building industry--seeking to get the slow-growth initiative off the June ballot--argued that the initiative crossed the constitutional guidelines outlined by the Nollan case.

It was one of the first times the case had been used against a slow-growth measure, said Richard G. Duncan Jr., the Gibson, Dunn & Crutcher lawyer representing a partnership led by Irvine home-builder Lusk Co.

The initiative, the industry lawyers argued, requires developers of new projects to improve roads burdened by traffic from existing subdivisions and offices, traffic the new projects did not cause.

Like the Coastal Commission, the lawyers argued, the initiative unfairly requires that a problem be fixed by someone not responsible for it.

The 4th District Court of Appeal in Santa Ana, while rejecting the Nollan argument as a reason for knocking the initiative off the ballot, left the door open for the lawyers to try again if voters approve the initiative in June.

While the industry lawyers had raised “serious questions,” the questions weren’t serious enough to prevent a vote on the initiative, the court said.

Meanwhile, it remains unclear how effective the Nollan case will be--if at all--in fighting the slow-growth initiatives popping up in counties and cities around Southern California.