Court Rejects San Clemente Slow-Growth Initiative : Law: A ruling invalidating Measure E, which tied development to traffic improvements, is unanimously sustained on appeal.

An appeals court Thursday upheld a lower court ruling invalidating a slow-growth initiative that San Clemente voters approved in 1988.

In a unanimous opinion released Thursday, the 4th District Court of Appeal agreed that Measure E, the San Clemente Citizens’ Sensible Growth and Traffic Control Initiative, “is an improper exercise of the electorate’s initiative power” and is thus unconstitutional.

The measure, which tied development to traffic improvements, was approved in June, 1988, by San Clemente voters, 63.5% to 36.5%. Four months later, Orange County Superior Court Judge John C. Woolley declared it unconstitutional, ruling that it would have forced developers to solve problems that preceded their projects.

“I’m obviously very disappointed,” said City Councilman Thomas Lorch, who was elected in 1986 on a slow-growth platform. “As has been the tradition the last few years in Orange County, the developers win and the people lose.”

However, San Clemente Mayor Scott Diehl, who opposed Measure E, said the appellate court decision “will have virtually no effect” on the city.

Diehl said many of the issues raised by Measure E have already been addressed by a growth-management committee formed after the lower court voided the measure and are being incorporated into the city’s general plan.

But Lorch noted that those changes have yet to be made official, though 2 1/2 years have passed since voters showed they support the changes by a wide margin. Slow-growth advocates tried unsuccessfully to persuade the City Council both to pursue an appeal of Woolley’s ruling and to enforce Measure E while the appeal was pending.

The original challenge to Measure E was filed by Marblehead, a developer that owns land in San Clemente, but it was a group of city slow-growth advocates, the Citizens for Sensible Growth and Traffic Control, that appealed. Both the state attorney general’s office and the Air Quality Management District filed friend-of-the-court briefs supporting the slow-growth measure, Lorch said.

In a decision written by Justice Henry T. Moore Jr., the Court of Appeal said Measure E did not specifically change the city’s General Plan but rather directed the City Council to revise the plan to reflect the “concepts” expressed in the measure.

“While it might be argued the electorate could amend a general plan and direct the City Council to revise the city’s zoning ordinances to comply with it, Measure E goes beyond that,” Moore wrote. “It directs the City Council to amend both the general plan and the zoning ordinance. This type of measure is not within the electorate’s initiative power.”

Measure E contained a clause saying that if one portion of the measure is declared unconstitutional, the rest is still valid. But Moore wrote that, because “the defect affects the entire measure, the initiative’s severance clause cannot be used to save any part of it.”