City’s legal expenses fighting housing lawsuits mounting

ENCINITAS — Encinitas’ ongoing housing legal woes have already cost the city nearly $700,000 over the past three years — including $140,000 the last three months alone — The Coast News has learned.

The city has paid three law firms — City Attorney Glenn Sabine and outside firms Goldfarb & Lipman and Richard Watson & Gershon — a total of nearly $350,000 since July 2013 to defend the city in the Desert Rose, Building Industry Association and David C. Meyer Properties lawsuits.

Additionally, the city has paid $325,000 to settle the BIA and DCM properties lawsuits, bringing its legal total over the three years to $675,000.

The amount is certain to rise, as the city was recently hit with a lawsuit from homeowners challenging a second-story addition to a home in Old Encinitas and another from a group challenging the BIA settlement and the city’s recent approval of a density-bonus project in Leucadia.

Officials blamed the city’s legal predicament largely on its lack of an updated housing element, which has made it an easy target for developers. Residents, however, believe the city should have fought at least two of the lawsuits rather than agreeing to what they characterized as lopsided settlement agreements.

“The reality is that we spend a lot of taxpayer dollars because we are out of compliance with the law,” City Councilwoman Catherine Blakespear said. “There are some lawsuits worth fighting on principle, and there are other lawsuits that aren’t and those are the ones where we don’t have a leg to stand on, legally.

“I think it stresses the importance that we pass a housing element in the fall,” Blakespear said.

Two of the city’s lawsuits during the time period stem from a 2014 decision by the City Council to change how the city interpreted the state’s density bonus law. The BIA lawsuit challenged the policy change, and residents urged the city to fight the case in the courtroom.

The city spent $188,548.15 from Dec. 1, 2014 to June 27, 2016 defending the case, according to the legal invoices obtained by The Coast News through a public records act request. In July 2015, however, the city announced they would settle the case, agreeing to pay an additional $200,000 to the BIA.

Susan Turney, a Leucadia resident who is one of the most vocal opponents of the city’s density bonus developments, was disappointed that the city did not fight the case in court. Turney said the city gave away too much of its land-use authority when it settled and promised to have a housing element on the Nov. 7 ballot.

Critics argue that the settlement has hastened the city’s decision making as it pertains to the housing element, resulting in a flawed ballot measure that will be a hard sell to voters.

“There’s no guarantee the BIA won’t return to sue over the Housing Element Update if it doesn’t pass,” Turney said in an email.  “The city contractually delegated its land use authority.”

She believed the city’s second recent settlement with David Meyer was a further delegation of the city’s land use authority, this time as it agreed to change the way it calculated the base density of density-bonus projects from rounding down to rounding up in the case of fractional units.

“Other cities in California have the same language in their municipal codes and are not being sued,” Turney said. “We should have defended this one and not delegated our land use authority to the BIA.”

According to records, the city spent $137,199.72 between April and July on the David Meyer case before announcing a settlement last month that included a $125,000 payment to Meyer’s firm.

Blakespear said it is easy for people not in positions of authority to tell the city to fight the lawsuits when they don’t have to answer to taxpayers about the mounting expenses, but she said that city officials determined it would be fiscally irresponsible to defend a position that was legally indefensible.

“The reason we are settling is because there is no question of law,” Blakespear said. “We can’t go to court and say ‘well other cities are doing it,’ that doesn’t get you anywhere in court. It is like a speeding driver saying to the police when they are pulled over, ‘Everyone else was speeding.’ The police will say, ‘I pulled you over.’ That is not an argument that holds any weight.”

Blakespear said the council has to weigh fighting lawsuits with other city core services, which are also priorities of residents.

“When you are one of five people trying to figure out is this a good way to spend money if potholes are not being filled or other projects are not being done because we are working and spending money on these lawsuits, it is not a good decision,” she said.

Turney, who is among the group of residents suing the city over the Hymettus Estates project, said that the city would be best served to listen to its residents as opposed to developers.

“The city should listen to informed citizens who raise significant and serious issues; when the city dismisses a significantly flawed (environmental impact report), it leaves residents nowhere to go but to court,” Turney said.

“The city only encourages the BIA and developers to sue when it settles with and delegates our land use authority to them,” she said.

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