Costa Mesa Sued Over Growth Curb : Builders Say Measure Violates Their Rights and Creates Delays

Times Staff Writer

A third local slow-growth measure came under legal attack when a builder and a building association filed a lawsuit Thursday against Costa Mesa.

The plaintiffs believe that the city's Measure G--passed in November, 50.2% to 49.8%--is unconstitutional, a spokeswoman for the association said.

Measure G requires developers to pay to maintain pre-development levels of service or a level deemed adequate by the city for police, fire and paramedic services and flood control. They must also not increase pre-existing traffic levels around their projects or, in some cases, make improvements in traffic conditions.

Thursday's suit was filed on behalf of Frank McGavern of Corona and the Building Industry Assn. of Southern California Inc. in Santa Ana Superior Court, said Camille Courtney, a spokeswoman for the two plaintiffs and chairwoman of a Costa Mesa builders' advocate group called Mesa Pride.

Confusion Causes Delay

The city's confusion over how to implement Measure G, she said, caused an indefinite delay in approval for an industrial building that McGavern wants to build on Placentia Avenue.

The measure is unconstitutional because it forces property owners to pay the cost of improving traffic conditions that they did not create, Courtney said.

About six other builders have contacted her with similar complaints, she said.

Two other initiatives to control growth in local cities have been struck down by the courts in recent months. Measure X in San Juan Capistrano was struck down Feb. 21 by a county judge, who declared that it placed an unfair burden on future developers to solve problems with traffic, sewer and other public works facilities. In October, a judge struck down a San Clemente slow-growth initiative that had been approved by voters.

The courtroom defeats for the local measures followed the June 7 defeat of a countywide slow-growth initiative by 56% to 44%.

Thomas C. Rogers, president of Citizens for Slow Growth and Traffic Control, which supported the countywide measure, said the lawsuit against the Costa Mesa measure is unreasonable.

The Costa Mesa plaintiffs "don't want any restrictions to build," he said. "They want no checks on growth. . . . The building association would file a lawsuit against the Ten Commandments if it inhibited them against building."

Costa Mesa Councilwoman Sandra L. Genis, who supported the measure, said she believes that there is not enough support among other council members to pressure the city staff to approve the building applications in a timely way.

"If you have political support behind (a measure), you'll find a way to implement it," she said.

But Genis said she is confident that the initiative can withstand legal challenges because it differs from other county initiatives: "We don't require improvements over existing levels of city services or flood control. We say just clean up your own mess."

Approval of about six to 12 projects have been delayed because the city could not assess their effects on city services, Assistant City Planning Director Perry L. Valantine said.

Traffic and engineering studies can determine flood and traffic effects, he said. But determining a development's effect on other services is difficult.

"We don't have the technology or the methodology to see how the project will impact the area," Valantine said. "I don't know of anyone that has the capability to assess the impact of police and fire on individual projects."

Small Projects May Be Exempt

Some small projects, such as those of less than 10,000 square feet, will not affect city services, traffic or flood conditions and may be exempt, he said.

Impact studies can be conducted by the city with information at hand, he said, but otherwise developers are responsible for producing impact studies.

"We have to lay the responsibility on the applicant to comply with the measure," he said.

A city panel is discussing ways to conduct impact studies, City Atty. Thomas C. Wood said.

In the meantime, McGavern, who owns a glass company, is anxious to start his project. He said he is not interested in winning money from the lawsuit: "All I want is a building permit."

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