Slow-Growth Measure Voided in San Clemente

An Orange County Superior Court judge ruled Wednesday that a San Clemente slow-growth measure tying development to improvements in traffic is unconstitutional.

Judge John C. Woolley ruled that Measure E, approved by San Clemente voters in June on a 63.5%-36.5% vote, illegally requires developers to solve traffic problems that their projects do not cause.

“The initiative is facially defective,” Woolley’s written opinion says. “Its plain meaning requires property owners to mitigate conditions not only caused by their development (a proper goal) but also to cure the inadequacies of those who developed their property before them.”

The San Clemente initiative was patterned after an Orange County slow-growth measure that was defeated at the polls in June. Almost identical initiatives will be on the Nov. 8 ballot in Huntington Beach, Costa Mesa and San Juan Capistrano.

Under Wednesday’s ruling, the city of San Clemente is prohibited from enforcing any of the provisions of Measure E, which states that, when a major development increases traffic congestion by 1% or more at an intersection or highway link, improvements will be required to bring traffic flow up to certain standards.

Land-use attorneys tracking the four slow-growth ballot measures facing San Diego County voters Nov. 8 predicted that the San Clemente decision will not imperil any of them, even if it is upheld on appeal.

Dwight Worden, who helped write citizen initiatives that seek to cap home building in the city of San Diego and the county’s unincorporated areas, suggested that the two measures are safe from the legal test applied to San Clemente’s Measure E.

Although the two citizen initiatives, Propositions D and J, do link traffic congestion and other standards to issuance of building permits, they do not target individual developers, said Worden, who also has been hired by San Clemente to review the terms of Measure E.

Propositions “D and J say that, on a citywide or countywide basis, if you don’t meet certain standards, then the total number of permits that can be issued throughout the city and the county is slightly less,” Worden said. “But every landowner still has equal right to compete for those permits. It doesn’t take away any individual landowner’s right to develop.”

For the same reason, Janis Sammartino-Gardner, a land-use attorney for the city of San Diego, said language on transportation congestion in the city’s Proposition H protects it from legal attack.

Under the city’s plan, developments could be denied or scaled down if they generate more than the projects’ “proportionate share” of the transportation system capacity. But an individual developer is not asked to bear the brunt of improving traffic congestion, she said.

Private Los Angeles attorney Katherine Stone, who helped write the San Diego City Council slow-growth plan, said that, because “it does not ask developers to deal with other people’s problems,” it would withstand the test that Judge Woolley applied to the San Clemente measure.

County attorneys could not be reached for comment on Proposition B, placed on the ballot by the Board of Supervisors, but other attorneys suggested that it should not be affected by the San Clemente decision.

All four measures would limit residential construction, with Propositions D and J, authored by Citizens for Limited Growth, considered the stricter plans.

Dan Spradlin, the lawyer hired by San Clemente to defend the initiative, said he would discuss Wednesday’s ruling with the City Council before making a decision on whether to appeal.

“I think the ordinance is capable of an interpretation different from Judge Woolley’s,” Spradlin said.

The 1% traffic rule, Woolley said, could result in the “last parcel of land to be developed (bearing) the entire expense” of public facilities in a particular area.

John Simon, a Newport Beach attorney who led the $2.7-million effort to defeat the countywide slow-growth initiative, said that Woolley’s decision will hurt the measures in Huntington Beach, Costa Mesa and San Juan Capistrano.

“I think it’s terrific,” Simon said. “If it’s upheld on the same grounds on appeal, it will have a major impact on all situations where a property owner is being asked to bear the burden of public facilities” that are not necessitated solely by his project.

In San Juan Capistrano, Robert Davies, a sponsor of Measure X on that city’s Nov. 8 ballot, said he was devastated by Woolley’s ruling.

Davies, a 14-year veteran of the city’s Planning Commission, said the ruling attacks a basic tenet of land planning: that city officials must weigh the cumulative effects of development and “draw the line somewhere,” based on the availability of public facilities.

“We’re all trying like hell to find a solution,” Davies said, “and if there was any easy solution, it’s not in this court decision.”

Land-use lawyers said Wednesday that, to their knowledge, no other California city now uses a growth-control approach like the one in San Clemente’s Measure E.

Growth-control measures on the November ballot in Riverside call for annual caps on building permits.

A ruling on the legality of Measure E was sought by a partnership controlled by the Lusk Co. of Irvine, which did not want the initiative to apply to its proposed 253-acre, 1,290-home Marblehead project atop 100-foot bluffs along the ocean in San Clemente.

In San Clemente, where the City Council recently decided that parts of Measure E were unenforceable and too complex to administer, reaction to Woolley’s ruling fell along predictable lines.

“We have taken a step backward in San Clemente and all over where development takes place,” said Mayor Tom Lorch, a key backer of both Measure E and a 1986 slow-growth initiative that capped residential development in the city at 500 units a year. “It throws a monkey wrench into the planning process that was under way in San Clemente.”

Woolley’s ruling comes less than two weeks after the U. S. Supreme Court upheld a San Francisco law that imposed developer fees for transit improvements in the city’s central business district. Times staff writers Leonard Bernstein, Jim Carlton, Michael Flagg, Dave Lesher and William Trombley contributed to this article.