The housing element, Measure T and lawsuits

When I vote NO on Measure T, could Encinitas be sued — again?  As a retired attorney, I have to answer yes: anyone can sue anyone whenever they want.  If Encinitas fails to pass the Housing Element who would sue, and why?

Councilmember Lisa Shaffer has written that if Measure T fails, the city will be sued again. While her opinion is pure speculation, two things are unarguably true: first, by putting Measure T on the ballot, Encinitas will have satisfied the Building Industry Association (BIA) settlement agreement and tried to enact an updated housing element.

Second, should Measure T fail, the Order to develop a housing element would still stand. The City would start over to (hopefully) create a housing element that voters can pass: one that guarantees low-income housing, keeps building heights 30 feet and doesn’t transfer powers to an unelected official (including 230 pages of developer-friendly “policy changes” the State does not require).

Shaffer’s conjecture that a court will take over Encinitas’ housing or planning department(s) is absurdly exaggerated. In the Pleasanton case, that City had capped the total number of houses that could be built — a violation of State law.  Conversly, Encinitas has no housing cap. Threats that the State will “send in a judge” are groundless.  California State Housing & Community Development (HCD) Deputy Director Campora has assured us that the State will never sue a city over not passing a housing element update.

Lawsuits might come from developers, but; why does Encinitas get sued?  Because we settle quickly, pay off developers, and even change our codes to suit them.  It’s time we take back our city before we lose it to developer’s interests.

The City Council has wasted thousands of taxpayer dollars in legal fees.  Recently I wrote the City Council regarding an unconstitutional ordinance the city had enacted (allowing only two signs per house 30 days before an election).  Any law student would have known that this ordinance was a violation of the First Amendment’s freedom of speech.

The city refused to correct the ordinance promptly, which would have saved thousands of taxpayer dollars.  I retained the ACLU and after ten months of empty negotiations with the city attorney we filed suit in Federal Court. Ten days after filing and over a year after bringing this to the city’s attention, the City Council came to settle the matter, offering to pay for my legal fees and to promptly correct the unconstitutional sign ordinance.  My legal fees and the city attorney’s legal fees exceeded $60,000 in completely unnecessary expenses to Encinitas taxpayers!

It is important to remember that courts have limited powers and are exceedingly cautious not to over step or abuse their discretion.  Fear is a potent and false adversary.  Do not fear what you do not know.  Instead, trust the process and an independent and honest Judiciary that is not interested in commanding from the bench a power and authority (local zoning) that has historically belonged to local voters.

Our Judiciary is our referee of disputes and I believe that it will let the voters determine local zoning.  Join me in voting “No” on Measure T and send the plan back.  We can and should do better if we truly value what we Encinitans have.

Peter Stern is a retired attorney and Cardiff-by-the-Sea resident.

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