Extensive Court Fight Expected if Voters OK Growth Control

Even if San Diego voters approve stringent growth-control measures at the polls in November, city leaders face the enormous task of deciding the fate of more than 60,000 homes that are in various stages of the city’s planning process, according to city and development industry officials.

Market demand for housing and the five- to seven-year planning process could delay construction of some of those homes into the next decade, the next century or forever.

But experts agree that the city and the development industry probably will fight an expensive legal battle over two key questions: which projects already have been guaranteed the right to be built and whether the city has the authority to determine when they will be built.

The answers to those questions will be crucial in determining the effectiveness of any residential homebuilding cap or any other growth-control provisions adopted by city voters, at least during the first few years after a plan is approved.

City Atty. John Witt “will tell us whether the city has the authority to stop issuing those people building permits,” said Kim Kilkenny, legislative counsel for the Construction Industry Federation.

“And, if he says a builder doesn’t have a right to a permit, the developer will sue and then a court will tell us. And, if he says they do have a right to a building permit, then some environmentalists will sue and a court will tell us,” Kilkenny said.

If it is determined that most of the 60,237 homes now in the planning process may be built, the council will have to decide how and whether to count them under any homebuilding cap approved in November. According to Kilkenny, the backlog would take up most of the available building permits available under either of the two caps now under discussion, greatly delaying smaller projects that are farther behind.

“Think about the poor guy who has bought his lot, his dream house, his single-family, detached house,” Kilkenny said “He goes in to pull his building permit and the city says, ‘Get in line, we’ll see you in four or five years.’ ”

Disagreement Voiced

Tom Mullaney, co-chairman of the citizens group that has placed a homebuilding cap on the November ballot, disagrees. Many of the huge residential projects that already have been approved will not be fully built for 10 or 20 years, because builders will not be able to sell homes faster than that, he said.

Also, the council could develop an allocation system under which it would approve some homes from the current backlog along with newer and smaller projects, Mullaney said.

The sheer size of the backlog, which was reported to the San Diego City Council Tuesday, surprised some council members and led Mayor Maureen O’Connor to suggest that she might support a growth cap even more restrictive than the one that has already qualified for the November ballot.

“There is a possibility, when all the facts are in, yes, that it would be smaller,” O’Connor said.

Schedules Sought

The council instructed Planning Department officials to bring back information showing the yearly building schedules of the large developments now in the planning process.

City residents are scheduled to review two growth-control measures at the polls in November. The Quality of Life Initiative, which would cap residential growth at 22,000 to 30,000 units during the first four years after passage, has already qualified for the November ballot through the petition process.

The city is working on its own growth-management plan. As now written, it would cap growth at 41,829 homes over the five years after passage. But the council is far from completing that plan and placing it before voters.

Proponents of the Quality of Life measure say that some of the homes that are part of the backlog do have a guaranteed right to be built, but would have to be counted against their overall cap and built within the time schedule spelled out in the ordinance.

The initiative would allow construction of 7,000 to 9,000 homes in the first year after passage, gradually decreasing that number to 4,000 to 6,000 homes by the fourth year. That limit would be maintained until the city meets certain standards for air and water quality, sewage treatment, solid-waste disposal and traffic congestion.

“It was our intention to treat fairly any projects in the (planning) process, but at the same time ensuring that tens of thousands of units are not exempted, which would destroy the effectiveness of our growth limits,” said Mullaney, co-chairman of Citizens for Limited Growth.

Janis Gardner, a city attorney advising the council on growth management, believes that only a part of the current backlog will ever be built because not all developers will be able to show they have a right to build. “I don’t think the number is as scary as it looks,” she said.

But Paul Peterson, an attorney representing some of the city’s largest developers, said the city cannot legally tell some developers who possess “development agreements” when they are allowed to build their homes, even if voters approve a cap in November. About 20,250 homes are covered by those agreements.

“My theory is that an inherent aspect of the development agreement is that you have the right to develop property within a reasonable amount of time,” Peterson said. “The fact that the development agreement doesn’t spell out when you can do it doesn’t mean the city can delay you for an indefinite period of time.”

“The problem the city faces is that it has to respect (building rights) or there will be an enormous lawsuit,” Peterson added. “It almost has to respect (those rights) or bankrupt itself. The liability is enormous.”

Debate will center on how to determine whether a project has a so-called vested right to be built. Under a 1976 court decision, developers must have an approved building permit and start construction to earn a vested right to build.

In the 1980s, the state Legislature approved two other mechanisms that make it easier for builders to obtain the right to build. A “development agreement” is a contract between the city and the developer that often spells out the number of homes, schools, roads and fire stations that would be built each year.

A “vesting tentative map” gives a developer the right to build, but also gives the city the right to impose certain conditions on the construction.

Assistant Planning Director Michael Stepner said that city planners will have to undertake a case-by-case review of every project now in the planning pipeline to determine whether each has a vested right to proceed after the November vote, a process authorized by Witt.

Planning Department figures show that:

* 9,834 homes already have building permits.

* 20,250 homes are covered by 16 existing development agreements. These are generally very large projects in the city’s northern tier, such as the 5,600 homes planned for Carmel Mountain Ranch or the 3,801 homes planned for a section of North City West.

* 8,828 homes are covered under vesting tentative maps not subject to conditions of the city’s Interim Development Ordinance or the successor to be approved in November.

* 7,053 homes are covered under vesting tentative maps that are subject to those conditions.

* Developers have requested vesting tentative maps for another 14,272 homes.