Judge Questions Measure to Manage S.D. Growth

A Superior Court judge Thursday called into question the constitutionality of a San Diego growth-management initiative that has qualified for the June, 1992 ballot, suggesting that its provisions violate a legal requirement restricting ballot measures to single subjects.

In a tentative ruling on a lawsuit to force the Planned Growth and Taxpayer Relief Initiative off the ballot, Judge James R. Milliken said that a section of the measure calling for prevailing wages for construction workers does not belong in a growth-control initiative.

“It seems to me that the subject of prevailing wage rates (is) not functionally or legally or reasonably related to planning and zoning,” Milliken said, adding that he believes the measure “violates (a section) of the California Constitution that requires an initiative to embrace only one subject.”

Milliken’s remarks cast a shadow over the managed-growth organization Prevent Los Angelization Now!, which placed the measure on the June 2 ballot after a $122,000 petition campaign. The plumbers and pipe fitters unions, which have contributed heavily to PLAN!, also would be losers if Milliken tossed out the initiative.

PLAN!’s chairman, Peter Navarro, who Tuesday formed an exploratory committee for a campaign for mayor, also could be hurt by the loss of the initiative, which would have come before voters on the same ballot as the mayoral candidates. Navarro could not be reached for comment Thursday.

Milliken issued no final ruling Thursday, agreeing to consider arguments offered by three attorneys at the hearing before releasing a written decision, probably within a week. He expressed reluctance to remove a popularly supported initiative from the ballot before voters have a chance to accept or reject it.

But he said that “if the initiative is clearly, without question, unconstitutional, the court should say so” in response to a lawsuit.

Representatives of the newly formed San Diegans for Economic Stability, a business group that brought the lawsuit, expressed satisfaction with the tentative ruling and eagerly awaited Milliken’s formal decision.

“We are pleased with the direction of the court,” said Mac Strobl, a political consultant for the building industry and one of the petitioners in the lawsuit.

Mark Aaronson, attorney for the Plumbers & Steamfitters Local No. 230, conceded that Milliken “was coming out leaning against us.” He said that he expects the plumbers union to appeal if it loses, and that “it is very likely that a Court of Appeal would overturn any decision to throw (the initiative) out.”

PLAN!’s initiative, which qualified for the ballot with an estimated 67,000 valid signatures of support, seeks to force builders to pay their fair share of the services required to accompany new development. It would prohibit new development if it reduces the number of police per capita or increases the likelihood of water shortages, water rationing or increased water rates.

The initiative is the main project of PLAN!, which in recent years has sought to expand the political power of growth-control forces through the ballot measure, opposition to a 1990 development industry initiative and direct involvement in City Council races.

Critics say the measure is a recipe for economic stagnation in a city already hit hard by the recession. They contend that its provisions would preclude all reasonable growth, and that builders already are paying their fair share of the costs of development.

One section of the initiative mandates “livable wage rates” for construction workers on all but the smallest housing, commercial, industrial and infrastructure projects. It calls for use of state prevailing wage rates as a benchmark.

In addition to questioning whether the section violates the single-subject rule, Milliken also suggested that it could be superseded by state and federal law on prevailing wages.

Attorneys for the union, the business group that filed the lawsuit and the city of San Diego said that case law prevents Milliken from removing the prevailing wage provision of the initiative if he finds it unconstitutional. The judge would be required to throw out the entire measure, they said.

In an hourlong hearing that followed Milliken’s tentative ruling, Aaronson argued that the prevailing wage rate is germane to the initiative, contending that courts have upheld single-subject challenges “only in the most outrageous circumstances.”

Paying livable wages, Aaronson asserted, would attract a well-trained construction work force, minimizing costly accidents and construction defects that might jeopardize public safety and cost taxpayers money.

Aaronson and Alan Sumption, an attorney for the city of San Diego, which was named defendant in the case, urged the judge to allow voters the chance to adopt or reject the measure, which would amend the city’s General Plan. Intense publicity during the campaign would assure that voters understand the contents of the measure, Aaronson said.

“This is not a case for a single-subject challenge, and certainly not on a pre-election basis,” Aaronson.

Milliken acknowledged being “troubled” by the prospect of intervening before an election and promised to reread case law and reconsider the issues before issuing his ruling.

But Jay Hanson, attorney for San Diegans for Economic Stability, said that, unless Milliken acts before the election, pro- and anti-initiative forces will spend a lot of money in a political campaign. He claimed that current development projects might be imperiled by the prospects that the initiative could become law.

“Your honor, it just doesn’t fit,” Hanson told Milliken. “There is no rational argument that can be made to say that prevailing wage fits into this.”