California Slow Growth Drive Grew Up in 1970s

Although slow-growth initiatives almost always generate flurries of litigation, most of the legal questions seem to be settled, at least for now.

Sixteen years after the first major verdict--a New York State appellate court decision approving growth controls in Ramapo, N.Y.--”people in the slow-growth movement now pretty much understand what they can do, what the courts will allow,” said Douglas R. Porter of the Urban Land Institute in Washington.

“The public interest is being very widely interpreted,” he said. “The courts have gone far enough now so that any community that . . . comes up with a rational plan, with fair and reasonable implementation, can do anything it wants in the way of zoning and planning.”

And the courts will allow quite a lot, Porter added.

“There is nothing to stop this expansion of power except the courts, and the courts have resigned,” said Gideon Kanner, a professor at Loyola Law School in Los Angeles who believes the courts should do more to protect property owners against land-use restrictions like slow-growth measures.

“Usually the courts are only too willing to push aside precedents, but in this case they grow humble and say, ‘Who are we to challenge growth initiatives?’ ”

When the U.S. Supreme Court ruled last year that a government may have to pay compensation to a property owner if a strict land-use measure prevents the owner from using his land, developers hoped that this might discourage slow-growth advocates. But that has not proved to be so.

“The ‘takings’ decisions haven’t had much effect,” Joseph DiMento, professor of social ecology at UC Irvine, told a recent growth-management conference in Los Angeles. “There has been no major increase in intervention by (lower federal courts) to protect property rights.”

California’s first major case began in the early 1970s, when the city of Petaluma, 40 miles north of San Francisco, imposed an annual limit of 500 new building permits.

Builders sued but a federal appellate court upheld the “Petaluma Plan” and the U.S. Supreme Court refused to hear an appeal.

More recently, most growth-control plans in California have been mandated by initiatives or referendums.

It has been relatively easy to qualify the ballot measures, thanks to provisions added to the state Constitution when Hiram Johnson was governor in the early part of this century.

And a series of California Supreme Court decisions in the 1970s and ‘80s has made it even easier for slow-growth advocates to take planning or zoning issues to the voters.

Developers hope that the current, more conservative court will begin to reverse some of these decisions.

Meanwhile, lawyers for developers are trying to keep slow-growth initiatives off the ballot, contending that they would damage “regional welfare.”

If that doesn’t work, lawyers for the building industry often argue that such initiatives are “exclusionary” by creating steep increases in rents and housing prices that low- and moderate-income people would not be able to meet. Developers also argue that growth-control initiatives are invalid if they interfere with state annexation laws or if they are inconsistent with local land-use plans.

Hoping for a Victory

Industry lawyers believe that they can delay, if not defeat, growth-control initiatives if they can win a major appellate decision that would requires such measures to be in compliance with local general plans.

They are hoping for such a victory in Walnut Creek, a fast-growing community east of San Francisco, where a 1985 measure sought to curtail development until traffic congestion is relieved.

Dean Lesher, publisher of the local newspaper, the Contra Costa Times, filed suit on grounds that the initiative was inconsistent with the city’s General Plan. Lesher won in Superior Court and the case now is on appeal.