A three-judge panel of the D.C. Court of Appeals ruled yesterday that two proposals to require developers to subsidize low-income housing can be placed before the voters as ballot initiatives.
The ruling, which reversed a decision by city election officials, removes an important roadblock facing activists who have been pushing for a citywide vote on two plans: one that would require developers building commercial office space of more than 50,000 square feet to agree to build or rehabilitate low- and moderate-income housing, and another to impose a 10 percent tax surcharge on such commercial properties and require that the funds be spent on housing.
It is too late for the initiatives to appear on the Nov. 6 general election ballot. The next possible election would be in late April, when election officials are anticipating a special election to fill an expected vacancy in the Ward 2 D.C. Council seat.
The D.C. Board of Elections and Ethics had ruled that both proposed initiatives violated the city's requirement that voter initiatives not seek to appropriate funds, a right that is reserved for the mayor, the D.C. Council and Congress.
But in the ruling yesterday, the appeals court judges concluded that the election board erred in its reasoning and said that neither initiative sought to appropriate funds. Instead, the judges ruled, the initiatives only sought to earmark funds for specific purposes while leaving to the mayor and council the responsibility to appropriate funds.
Votes on the initiatives could be pushed back to 1992, given the extensive legal battle expected to ensue. Both the board and development industry groups could appeal to the full D.C. Court of Appeals.
The board of elections would also have to propose ballot language for the initiatives, which could in turn provoke a legal challenge from industry groups, and those seeking the initiatives would have to obtain the signatures of 5 percent of registered voters in order to get them on the ballot.
Still, yesterday's ruling was hailed by proponents of the measures as an important ratification of their view that the initiative process should not be as restrictive as interpreted by the board of elections.
The last major initiative approved by D.C. voters was Initiative 17, the right to overnight shelter law for the homeless that passed in 1984. D.C. officials have sharply criticized that law, saying it posed an undue financial burden on the city, and the D.C. Council recently amended the law. Those amendments would be overturned if a referendum on the Nov. 6 ballot is approved.
Carol R. Golubock, an attorney for the Service Employees International Union, said it is "extremely difficult" for groups to place initiatives on the D.C. ballot because of the "narrow interpretation" of the law by the election board. "The significance is that the court is really reaffirming what it has said before -- that it is okay for initiatives to have a fiscal impact," she said.
Margaret O. Jeffers, executive director of the Apartment and Office Building Association of Metropolitan Washington, expressed disappointment in the court's ruling yesterday and indicated that her group plans to appeal the ruling to the full appeals court.
Officials for the board of elections declined to comment, saying they are reviewing the court's decision. They said they have not yet determined whether they will appeal.