Attorneys Planning Post-Election Strategy if Voters Approve Measure A

With a vote on the slow-growth initiative little more than a week away, there is one group that is already planning its post-election strategy--the lawyers.

Measure A, the Citizens’ Sensible Growth and Traffic Control Initiative, is already under legal attack by the building industry, which plans to press its case in the courts if the issue is approved in the June 7 election.

Legal experts say they may have a tough time winning. Slow-growth initiatives have withstood lawsuits far more times than they have lost in the California courts, they said.

But lawyers for the building industry say the courts’ attitude is changing, and the Orange County initiative is vulnerable to attack on several fronts.

“The courts tend to lean over backwards to uphold the validity of ordinances that have been enacted,” said Kenneth B. Bley, a Los Angeles lawyer who represents developers.

“But there are a number of deficiencies in this ordinance, and if the court can’t figure it out, it might say, ‘Let’s start all over.’ ”

Only one thing is fairly certain, both sides say. The wrangle is likely to take the courts months and perhaps years to sort out.

The Building Industry Assn. of Southern California--a trade association for home builders--has a hearing scheduled July 13 before Orange County Superior Court Judge John C. Woolley. The group will probably ask the judge to prevent the county from enforcing the initiative if it passes.

A partnership led by Irvine home builder Lusk Co. filed suit against an identical ordinance in San Clemente and will be heard at the same time.

Woolley in March rejected the builders’ request to toss the initiative off the ballot. But experts say that if the California courts are going to overturn a ballot measure, they are more likely to do it after the election when voters have had a chance at it.

And there’s another issue: Even if the initiative passes and is upheld by the courts, county government has recently approved more than 20 agreements that developers contend exempt thousands of houses and millions of square feet of commercial buildings from the provisions of the initiative.

The supporters of the initiative are suing to overturn those agreements, so the ultimate effect and scope of the initiative depends on the outcome of those cases too.

Some of the county’s largest developers hope the agreements will shield their biggest and most prized projects in return for their providing millions of dollars for road construction and other public improvements.

So important are the agreements to the developers that they agreed to pay for the legal defense when the county asked them to do so.

But these development agreements, as they are called in land-use jargon, are so little used and have generated so little controversy until now that there are few previous court cases concerning them.

“There is no case law on development agreements,” said Bruce Tester, an Irvine lawyer who represents Santa Margarita Co. and its enormous landholdings in Orange County.

“But experts who write on this area of the law think the agreements will survive.”

And here’s another issue to consider: How vigorously will the county defend the initiative should it become law?

County’s Role

The five county supervisors chose not to defend it when the building industry sued them in March to keep the initiative off the ballot.

Instead, the initiative was defended by the group sponsoring it, Citizens for Sensible Growth and Traffic Control, and the cities of Laguna Beach and Irvine.

Passage of the initiative would shift the financial burden of defending it from the cities and the citizens group to the county.

But should the initiative pass, a lawyer for the cities wondered how effectively the county will defend it.

“The courts have made it clear the county has an obligation to defend it if it passes,” said Mark I. Weinberger, a San Francisco lawyer.

“But a good question to ask is, ‘Does the county counsel’s office feel they can vigorously defend it?’ ”

Defense of Measure

Ironically, the county may be defending the initiative from developers in court while it is helping defend the development agreements from the citizens group and environmental organizations.

The county’s lawyers say that’s not a problem.

“Any government entity may be lukewarm to a lot of things, but it respects whatever the law is,” said Edward N. Duran, deputy county counsel.

“Our office has never had a problem with that.”

The initiative prohibits new con struction near overburdened roads--unless the roads are improved--if the project would add more traffic.

The legal arguments the builders will raise against the initiative are different from the ones used in the political campaign against it.

Their lawyers will argue that the initiative conflicts with state law, that it is written in such a way as to stop all development, which state law prohibits unless there is good reason for a moratorium.

They will also say the initiative violates state law encouraging construction of low- and middle-income housing. The builders’ lawyers also contend that the initiative unlawfully ignores regional problems by benefiting only Orange County.

All these arguments have been used with varying degrees of success to challenge slow-growth ordinances in the past.

The lawyers also contend that the provisions of the initiative are so stringent that they are an unconstitutional “taking” of landowners’ property rights.

The lawyers hope to buttress their arguments with two U.S. Supreme Court cases from last year that indicated the court may be leaning toward a more conservative view of property rights and government regulation.

The July 13 hearing will probably be a short one as the lawyers for both sides argue the law--not the facts--of the case.

“Everybody connected with this case thinks this is an important matter to clear up quickly,” said Alvin S. Kaufer, a lawyer for the Building Industry Assn.

“We want it resolved, and we want it resolved quickly.”

But if they lose, the builders can appeal or ask for a full-fledged trial to sort out disputed facts in the case, Kaufer said. Such a dispute over the facts seems likely.

And the constitutional issues may have to wait even longer to be resolved in subsequent lawsuits, lawyers say. The courts are reluctant to rule on such issues in the abstract and may want to wait until the ordinance actually prohibits a landowner from developing his land.

“The courts usually say: ‘Come back after somebody’s done something to you,’ ” said Gideon Kanner, a Loyola Law School professor of land-use law.

So even though the builders’ two cases are in an expedited trial program that aims to resolve most cases within a year, some lawyers say it’s likely there will be a slew of smaller cases over the initiative. That could drag resolution of some of the issues out for years.

A lawyer on the other side suspects that the builders may shift their strategy to one of picking loopholes in the ordinance if they can’t convince a court that it is too stringent in prohibiting construction.

“I think the opponents’ Draconian interpretations of the initiative will disappear the day after the election, because they’re the ones who are going to get hurt by those interpretations then,” said Gregory A. Hile, a lawyer who helped draft the initiative and then defended it in the courts for Citizens for Sensible Growth.

“The fact is the initiative doesn’t stop construction. I can’t imagine (Santa Margarita Co. President) Tony Moiso is going to be on the unemployment line on June 8.”