Three lawsuits that seek to nullify Prop A are pending against the city of Encinitas.
In the lawsuits, the plaintiffs assert that Prop A is in direct conflict with state law because it requires voter approval of Housing Element Updates (HEU). Prop A doesn’t require voter approval of Housing Element Updates, but since those updates usually mandate density and land use zoning changes, they invoke Prop A.
The city has not updated the Housing Element for two decades and less than 500 homes of the 25,000 in the city meet the state affordability requirement for low-income residents. The current state requirement is for 1,093 low-income housing.
In June 2013, voters passed Proposition A, a citizen-generated ballot initiative that eliminated the City Council’s ability to make zoning changes (in the public interest) by vote of the super majority, limits building heights to two stories and requires voters’ approval of proposed changes to density or land use.
Prop A was the logical response to a 2009 city Housing Element Update to rezone most of Coast Highway 101, El Camino Real and Encinitas Boulevard for three-story mixed-use buildings supposedly to meet state requirements for low-income housing. At that time the city did not calculate the number of acres being rezoned, but it appeared to be at least 2 to 3 times larger than Measure T.
Measure T was the city-generated Housing Element Update that voters rejected last November. Measure T would have rezoned 108 acres and allowed the development of three-story buildings and 4,000 new homes, but only 10 percent would have been set aside for low-income residents.
The Building Industry Association (BIA) filed the first density bonus and anti-Prop A lawsuit in October 2014. The city settled the suit in July 2016. The settlement required the city to adopt Measure T following the November 2016 election. Voters rejected it, so the city couldn’t adopt it. BIA filed a motion June 26 in Superior Court to eliminate voter approval of Housing Element Updates and force the city to adopt Measure T.
DCM Properties (David C. Meyer) filed the second density bonus and anti-Prop A lawsuit in January 2016. The city settled the suit in July 2016. The settlement required the city’s best effort to pass the Measure T (HEU) in November and to adopt it even if it failed at the polls. DCM alleged breach of the settlement in January and filed a motion June 30 in Superior Court to schedule a court hearing Sept. 8 to force the city to adopt Measure T and sanction the city until it does.
Because the city couldn’t adopt a defeated HEU, the City Council convened a task force to com-pose a revised HEU initiative for the November 2018 ballot. Its purpose will be to meet the state’s low-income housing requirements. Following the November election the city responded to both BIA and DCM disagreements over the settlement terms that it was working with opponents of Measure T in order to seek a solution acceptable to city residents.
The Public Interest Law Project filed the third anti-Prop A lawsuit on behalf of San Diego Ten-ants United in April 2017. The city filed its first response to the housing element lawsuits on May 25 in response to this lawsuit and provided a broad defense of Proposition A. It argues the plaintiffs lack standing to file a complaint, failed to state a claim for which relief can be granted and that seeking to nullify Prop A denies the local electorate’s right to avail itself of the initiative and referendum process guaranteed by the State Constitution.
Nullifying Prop A has long been a goal of the building industry and local developers. Encinitas residents have voted twice for slow growth and once against an HEU that would have increased housing density and building height while providing a minimum of low-income housing.
If the city does not vigorously defend Proposition A, its demise would open the floodgates to 3- to 4-story buildings and thousands of new homes without regard to increases in traffic or air pollution while providing a minimum of low-income housing.