News Scrapbook 1988

San Diego, CA (S n Diego Co.) San Diego Buslne a Journal (Cir. W. 7,500) JU 3 8

Fallbrook, CA (San Diego Co.) Fallbrook Enterprise (Cir. W. 6,173)

JUN 2 1988

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ing costs have increased up to 60 percent as a result of the city's cap on housing permits. He believes average new home lot prices have increased from $45,000 to $90,000 in response to the IDO. "We are in a growing region and there are going to be problems associated with growth," Morris said. "We should deal with those problems as opposed to saying thou shalt not build." Morris also contends those who already own homes, as well as their families, an• negatively impacted by home price i ncrenses. "If homeowners themselves choose to move up they may find themselves priced om of the mar- ket. They would have to leave town to realize the economic windfall," he said. "I would hopC> th11t I could hv,, in a community where my childn•n can find a home." But Morris is also concerned with the plannmg department's strict and far-reaching guidelines for sensitiv lands preservation. He said he would rnther see the continued case-by-case analysis of development on sensitive lands so tht>re would be give and take be- tween the jurisdictional bodies and dt'velopers. "It's stricter than the Coastal Commission," Morris said, adding that communities such as Mount Helix, Point Loma and much of Claircmont would not have been allowed under such guidelines. "Developers would be sensitive to sensitive lands if they were given clear and concise guidelines that wouldn't curtail flexibility of br- inging a product on line," he add- ed. /

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SAN DIEGO BUSINESS JOURNAL

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COMMENT y aeserves a fate better than grovVth controls Quahty of.1.1 e lniuati\e securely on the ov- a property value base that is too low to fund needed The ability to make a better life is foundational to our mb , b llot, the fate o owth control in San Diego 'sin changes in local infastructure. In this case local public ser- country and our Constitution, which clearly states the right of th voter~. Thi~ initiative, which is po red vices would continue to be below needed levels despite the to life, liberty and the pursuit of happiness. Our efforts to llz n for I imited Growth, would limit new hou - lowdown in con truction, unless he city levies new taxes make San Diego a better place requires more than an "us in u111t to few 4,000 unit a ye· r unle · certain emi- or the property tax system changes. again t them" attitude. Especially when we realize that room nt I t , dard ar met. The evcrity of the econ equences depends on the ability some of "them" are our own children. O e ur c this initiative wrll have company on the ballot, of developers to shift construction to other municipalities. Does all this mean that San Diego should do nothing at a, ti ny oun,il is hk wi d vi ing growth-control Ironically, shifting con truction further out will exacerbate all about its future? Absolutely not. Now is the time set

the problems associated with growth. In particular, traffic and air quality will worsen. Density changes within San Diego could alleviate these problems, but higher density is seen as a threat to the character of established neighbor- hoods. Philosophically, growth control$ are likewise difficult to justify. Perhap a counter example will make this clear. Think of the cities in the Northeasl or Midwest where peo- ple are exiting in large numbers . Clearly this outward migration has devastating effects on these local economies. It would therefore b in the best fnterests of such cities to mandate that no one can leave. Obviously, a policy of this type would be een as a blatant attact on individual rights · and lib.rlles. But growth control is really the same thing. Consider another example. Suppose all o( us could meet in space (without being a resident of any region) with the under tanding that we would be randomly assigned a place to live. Now that we have no location, would we ever agree to growth controls? Clearly not, because we might be as.,igned to an undesirable area and want to move some- where else. This i the whole point. People who were not born here c me to San Diego to make a better life for themselves.

Efforts to make this a better place require more than an "us against them" attitude. Especially when some of "them" are our own children. forward reasonable plans and issue specific policies that will address our current and future needs. No single policy can address all of San Diego's needs. Intelligent growth management that works with developers can bring about many of our desired goals without the negat.J.ve effects of a residential cap. Gro •· 1 ;, control will not solve our problems; It will not make more schools, it will not reduce traffic, it will not reduce beach crowding, it will not improve air and water quality. In short it will not improve the "quality of life." Now is the time to find policies that will. Sandy is an assistant professor of economics.;lt the Uni- versity ofSan Diego. ...--

Jonathan David Blacker Following completion of the four-year Naval Reserve Officer Training Corp., a program at the University of San Diego, Jonathan David Blacker was commissioned as an Ensign in the United States Navy on May 21. The son of Richard and Susan Blacker graduated from Fallbrook High School. While in NROTC Blacker was a platoon sergeant for the Drill Team , a Commanding Officer for I adquarter and Service ompany, and served a s t he Bat- talion Academics Officer for 280 midshipmen . Blacker has received awards for outstanding achievement from General Dynamics . and for Recognition of the Highest Attributes of Americanism from National So- journers. Blacker graduated from the Unlt'.ersity of Saa Diego with a Bachelor of Arts degree and a 3 65 . grade point average in Busrness Administration . Blacker made the Dean's List four consecutive semesters dur- mg his junior and senior years . Blacker has been an active member of the Sigma Pi Frater- nity since his freshmen year. He served as the Community Ser- vice Chairman for two of those years and coordinated activities with the Association for Retard- ed _Cit1z~~s of San Diego and Semor Citizen's Outreach. Selected to be a Naval Flight Officer , Bl ac k er h a s bee n orde r ed to report to Miramar Naval Air Station for tempora ry d uty until his aviation indoc- trination training begins next Oc to~er at Pensecola , Florida. It will consist of six weeks of navigation , aerodynamics wea~her, power plants , and ~hys1cal tr~i~ing. Upon comple- t10n of Aviation Indoctrination Blacker will enter Intermediat~ J\'.aval Fli~~t Of~icer training at either Wh1tmg Field, Florida or Corpus Christi, Texas, for actual on-hand flight training.

LETTERS

San Diego , CA (San Diego Co.) Daily Transcrirt (Cir. D. 7,415 JUN 6 1988

I xc,. I ho who do not own houses will clearly be made wor e ort . ince thi group could be haracteriLcd as having lower rncomc,, and contmmng a large proportion of blacks • nd II i panic , the bcnc 11 of growth controls would be c tremely r grcs rve and border on discriminatory. The onomrc consequences of growth control do not. top with high r h u ing prices and rent . Con ider the foJ . lowing complications: Fir t, due to housing prict>s and migration, we may ob crv..: people "doubling up" in existing hou ing. Thi • will m an more congestion in area that are not designed for high demity Irving. • cond, the hou ing liniit will naturally lead to unem- ploym nt in the construction industry. The effects of these l,1yoffs will doubtles spill over to other industries. Thrrd, the ·1rti ficially high return on housing may lead lo al investment funds to shift from productive capital investments to existing rental hou ing. Thi would hurt future employment opportunitie . l·ourth, local firms and universities may find it difficult to attract high-quality employee due to the increa ed cost of living. . l'ifth, a building cap may discourage firms from locating in San Diego, which could adversely affect the local econ- omy. Sixth, if rents gd sufficiently high, the city may consider rent control . which can be shown to decrease the quality and quantity of available rental units as well as increase rents in unregulated areas and increase homelessnes . Fin:-.lly, con ider the issue of financing the needed expansions in public facilities. Much of the necessary funds will come from development fee and property taxes. The former will drop by definition. Fewer new units means less revenue from fees at existing rates. Although property tax revenues could increase because of the inflated hou. ing prices, it is po ible that they will decrease. This follows because the rate of turnover of housing likely will decline due to the tax penalty of buying houses at inflated price . Because of Proposition 13 the city depends on housing turnover to apprai e the market value of a house and tax it proportionally. If the turnover rate falls, the city may have

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[s Constitution: An Inquiry underlyingvalues. _ Into Judicial Review and Its Impact on Society, by The proponents of original inten! object to this d~- B rnard H. Siegan; Transaction Books, 215 pages, velopment, not because the framers values are supen- $14.95. or (in the case of slavery, they clearly are not), but be- The Bic ·ntennial of the Constitution inspired the cause m a democracy governed by the rule of law such publication of a number of thoughtful books on con• changes s~ould be ef!ected by constituUona l ~men~- stitutional law, University of San Diego law professor ment. Ironically, Judgmg from the reaction t? Siegan s Bernard Siegan's "The Supreme Court's Constitution" book and to his nomination, it is controver ial mer?ly among them to point out the discrepancy between the. Const1tuti?n The focus of Siegan's award wmning book (it was as written by the framers and the Constitu'.1on as 111 • honon•d by the Professional and Scholarly Publishing terpreted by the Supreme Court, at least in certam Division of the Association of American Publishers) rn sacrosanct areas where unwritten rul es of academic apparent in the subtitle. "An Inquiry Into Judicia l etiquette apparently compel tha t such incon5istencies Review a nd Its Impact on Society." go unnoticed. Siegan explores Supreme Court decisions in eight Siegan's book can be critic ized us not gomg fa r areas, some long settled a nd others still evolving: fed-

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enough in prescribing a remedy (i f indeed there 1s one) to the problem , which Siegan is hardly the fi rst to diagnose, of Supreme Court rulings "either contrary to, or without guida nce from, constitut ional meaning and purpose." Hence, unlike-many New Right Judicial " re- formers," Siegan does not ra il agai nst ;udicral review, advocate constitutional amendments overturning par ticular Supreme Court decisions, or favor curbs on fed - eral court or Supreme Courtjunsdiction. His prescription is a definitely non-radical (and perhaps ineffectual) appeal for "strict construction" by the unelected Supreme Court to minimize the undemocratic consequences ofjudicial review. For all the controversy, then, Siegan's book is not very controversial It offers a succinct analysis of the history , text, and interpretation of eight areas of con- stitutional law (leaving ou t completely the areas of criminal law, the commerce clause, and pornography, among others). What makes Siegan 's analysi s different from other origmal intent exegeses is his intended au- dience and his hybrid libertarian approach. Siegan has not produced a theoretical magnum opus akin to Richard Epstem's "Takings". The lack of an overarching proposed solution to judicial review is refreshing. Siegan's stated purpose in writing "The Supreme Court's Constitution" was to inform the public concerning the nature, scope, and role of judicial review. He accomplishes that purpose very e!Tectively, with l'nough insight and sophistication to make the book in- teresting to lawyers and academicians as well. The most powerful check on the Supreme Court, as Siegan correctly points out, is the requirement that the public accept the legitimacy of its dec1s10ns. Unfortunately, this check has little practical force because the subtleties of constitutional law are seldom discussed, much Jess understood, outside of academia. The outpouring of books on constitutional law during the Bicentennial of the Constitution, and Siegan's book in particular, may have the salutary effect of creating greater public awareness of the Supreme Court and the process ofjudicial review. Mark S. Pulliam is a partner with L,tham & Watkins and a supporter or Bernie Siegan 's nomina• tion to the Ninth U.S. Circuit Court orAppeals.

A Review by Mark S. Pulliam

eralism, the legal tender cases, economic and prope rty rights, racial discrimination, the establishment clause. gender and equal protection, abortion and sexual pnvacy, and the First Amendment and libel. Siegan emphasizes the enormous extent to which the Supreme Court's dec1s10ns, often in conflict with the language or intent of the Constituti9n, have shaped the course of American culture and history. What distinguishes Siegan's book from the many others published in 1987, and what makes the author (whose nommation by President Reagan for a seat on the U.S. Court of Appeals for the Ninth Circuit in Feb- ruary 1987 is still pending) controversial is his un- conventional pomtofview. Siegan's devotion to both the concept of original m tent and the principle of individual rights (in a classical liberal sense) confounds the conventional con er- vative/liberal dichotomy, in which part1sans typically argue over the primacy of democratically elected leg1s- latures ("judicial deference"). Sicgan's defense of constitutional protection for property rights and economic activity leads to charges by critics on the nght that Siegan favors an activist role for federal judges. His view that the Supreme Court's doctrinal course has departed from the lan - "Uage of the Constitution and the intent1ons of its framers m areas such as race discrimination and media hbel is regarded as heretical by detractors on the left, even though Siegan takes pains to demonstrate that he disagrees with only the reasoning, and not the result, of Brown v. Board orEducat10n. S1egan's non-doctrinaire viewpoint defies labelling, which explains why his nomination is endorsed by Harvard's liberal Alan Dershowitz and Chicago's con- servative Philip Kurland (who opposed the Bork nomination), but opposed by Harvard's even-more- liberal Laurence Tribe and the Center for Judicial Studies' even-more-conservative James McClellan. The answer to this paradox is that the framework of values undergirdmg the Constitution no longer lies at the center of our intellectual and political discourse. The framers were religious, whereas our culture has become secular, almost hostile to religion. The framers were concerned about excessive governmental power, whereas the New Deal has made sweeping federal regulation and big government a fact of life. The framers were capitalists, inspired by John Locke, whereas our intellectual (and popular) com- mitment to free markets and property rights has dim- med considerably since 1787. Since the earliest days of the Republic, the Supreme Court's decisions in these areas reflected (or perhaps hastened) the shift in

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