The Lusk Co. said it has again asked an appeals court in Santa Ana to remove a slow-growth initiative from the June 7 primary ballot in San Clemente.
The 4th District Court of Appeal three weeks ago rejected the same request by the Irvine home builder. Lawyers for the company on Friday asked the court to reconsider.
The move was a surprise because the Building Industry Assn. of Southern California said last week it would not appeal its own case against the Board of Supervisors.
The trade group's case is more important because it would have prevented all county residents from voting on the slow-growth measure. The Lusk suit would prevent only San Clemente residents from voting on an almost identical measure affecting only that city.
If the ballots are already printed before the court rules, Lusk asked the court to void a favorable vote on the initiative.
"We listened to what our attorneys said, and we decided to go ahead with it," said Donald D. Steffensen, executive vice president of Lusk, one of Southern California's largest home builders.
One major factor in Lusk's decision, Steffensen said, was the company's enormous stake in residential development in the San Clemente area. A partnership that the company leads--named Marblehead--fears the initiative would shut down construction on its 1,000 acres there.
Steffensen is also president of the Building Industry Assn. He would not say whether he favored the trade group's decision to drop its suit, saying only that "it was decided by consensus, like all our decisions."
The two suits are slightly different. The Lusk Co. partnership contends that the initiative would unconstitutionally deprive the company of its right to develop its land. The trade group's suit relied more heavily on what its lawyers said were conflicts between the initiative and state laws, particularly a law prohibiting construction moratoriums.
A Superior Court judge--and later the appeals court--rejected that argument. The courts said the builders hadn't produced enough proof to meet the strict requirements under state law for removing an initiative from the ballot.
The initiative would require road improvements wherever traffic flow fails to meet strict standards. The measure would require the improvements to be completed within three years of occupancy of a major development project or within five years of issuance of a building permit or grading permit, whichever comes first. A trust fund would be created to finance the improvements, but the initiative leaves it up to county government to decide how to get the money to put into the fund.
The countywide initiative applies only to unincorporated areas, although all county residents can vote on it. The measure does not affect freeways, which are owned by the state.