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Legal Challenge of No-Growth Initiatives OKd

May 23, 1986|DAN MORAIN | Times Staff Writer

SAN FRANCISCO — No-growth proponents may continue to use the increasingly popular tool of ballot initiatives to limit growth, but must be prepared to defend the measures in courts, the state Supreme Court ruled Thursday.

A unanimous court, acting in a Camarillo case, said 1980 legislation that requires local governments to prove growth controls are warranted to protect "public welfare" also applies to voter initiatives.

As a result of the ruling, lawyers involved in the case predicted additional litigation. Now, lawyers for both the backers of the measures and governments in the affected cities or counties will have to answer challenges from developers by proving in courts that the controls are necessary to alleviate such problems as traffic congestion, inadequate sewer systems and overcrowded schools.

Burden of Proof

Before the 1980 legislation, opponents of such initiatives had the heavier burden of proving that city services could handle increased population and that growth controls were not necessary. That burden shifted to governments after the law was passed. But until Thursday's ruling, it was unclear whether initiative proponents also had to defend their measures.

The ruling comes at a time when voter initiatives to limit housing and office development are increasingly popular. Half of all growth controls imposed in California since 1980 came about through initiatives, the court noted.

In Los Angeles, for example, Councilmen Marvin Braude and Zev Yaroslavsky are advocating an initiative that would reduce the density of commercial building in much of the city. In Walnut Creek, no-growth advocates last November succeeded in winning approval of a measure that bans office construction until traffic congestion is eased.

Because of the increased use of such initiatives, the case drew interest from developers and no-growth advocates. Those advocates were concerned that a ruling against them might severely hamper the popular means of limiting growth.

As it turned out, the justices made it clear that voters can continue to propose and pass such initiatives. Led by Justice Malcolm M. Lucas, the court said the 1980 law "places no procedural barriers on the ability of the electorate to legislate through the power of initiative."

The law "simply requires that if the electorate exercises its initiative power, the local government must bear the burden of showing that the ordinance is reasonably related to the protection of the public health, safety or welfare of the affected population," Lucas wrote.

Attorneys involved in the case had not read the ruling. But Katherine Stone, Camarillo's lawyer, said she believes the ruling might make such measures "much more expensive for cities because these cases will go to trial."

"I'll guess we'll have to live with it," Stone added.

Limit on Condominiums

The case stemmed from an initiative approved in June, 1981, that limited the number of new condominium units in the community to 400 a year. An association of developers sued to have the measure declared invalid, but lost in Superior Court and the state Court of Appeal.

By partially reversing the lower courts, the Supreme Court ruling requires that lawyers for Camarillo and backers of the initiative return to a Ventura County Superior Court to prove that the measure was necessary.

"I'm very happy with it," said Stanley Cohen, who argued the case for the Building Industry Assn. of Southern California, a trade group of developers.

Cohen pointed out that when the measure was approved in 1981, the Camarillo City Council opposed it by a 4-1 margin. He noted that the city might have a hard time defending a measure that the council was against.

"I think the city will have a great deal of difficulty," Cohen said.

Argument Rejected

The justices rejected another argument by the developers' association by saying that a second piece of legislation passed in 1980 did not apply to initiatives.

That second law says any growth control ordinance must contain specific written conclusions that its passage was required to protect "public health, safety and welfare." The justices concluded that although city councils and county boards of supervisors must include such findings in any limited-growth ordinance they might pass, the law does not apply to initiatives.

"How can one prove that the voters weighed and balanced the regional housing needs against the public service, fiscal and environmental needs?" Lucas wrote.

". . . What was in the minds of the electorate in adopting the initiative . . . is immaterial. It is simply not logical or feasible to place this balancing requirement on the voters."

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