Cities Community Encinitas

Developer asks court to compel city to adopt housing element

ENCINITAS — A development consultant has asked a Superior Court judge to enforce a provision of a lawsuit settlement with the city of Encinitas that would require them to adopt an affordable housing plan without a public vote. 

DCM Properties, the namesake company of development consultant David C. Meyer, recently filed the motion to enforce the settlement between the firm and Encinitas, which stemmed from a 2016 lawsuit over, among other things, the city’s lack of an approved housing element.

A hearing on the motion is scheduled for 1:30 p.m. Sept. 8 in Judge Earl Maas’s courtroom.

DCM Properties attorney Christian Abasto said that the city as part of the settlement was required to adopt a housing element after the 2016 election, but has failed to do so some eight months later.

Encinitas has been attempting to craft a housing element update that would pass muster with voters, as it is required by a local ordinance voters have a say on major zoning or land-use changes. 

But the attorney for the firm said the city’s efforts are a “sham.” 

“They haven’t adopted a housing element, and we are asking the courts to compel them to comply with the settlement and with California law,” Abasto said. “The city has gotten away with it over the years because it is fairly small and no one pays attention. But with the housing crisis getting worse and worse, I think there is a state interest to enforce these laws. 

“But in many cases, like ours, it is housing advocates and developers who are doing the state’s job,” Abasto said. 

Mayor Catherine Blakespear said the city could not comment on the lawsuit, but disagreed with the characterization of the city’s recent efforts to create a housing plan that voters would adopt as a sham.

“It’s clearly not a sham if you’ve ever watched a task force meeting. We’re legitimately and in good faith trying to modify the last housing plan so that it’s more in line with community desires,” Blakespear said. “Recognizing that it’s inevitable that we need to zone for more housing because of state housing laws, we’ve asked the newly hired consultant to evaluate whether we could accomplish the state’s housing requirements in 2-stories and under 30 feet. We know that we’ll end up with a new housing plan eventually and this task force is aimed at making sure it’s a plan that a greater number of people could support.”

Encinitas is one of a handful of jurisdictions statewide to not have an updated housing element, a state-mandated document that details how a jurisdiction will zone to accommodate affordable housing in the future. The city hasn’t had an updated housing element since the early 1990s. 

Encinitas has also been in the crosshairs of developers and other interests in recent years on issues ranging from the city’s stance toward density bonus developments, a state-required program that allows developers to build extra homes in exchange for building at least one affordable unit. 

Those issues came together when DCM Properties sued the city in 2016 for a settlement of another lawsuit with the Building Industry Association over changes the city made to its density bonus policy in 2014. DCM originally sued to require the city to round up in the case when the number of units in a development was a fraction. 

But the suit also attacked the city’s lack of a housing element, and as part of the settlement, the city agreed to not only bring a housing element proposal to voters, but that they would adopt one by the certification of the 2016 election, which occurred in December. 

The city’s housing element proposal, Measure T, failed by a 56-44 margin, as opponents said the measure would generate far more homes and taller buildings than outlined in the proposal and would clog traffic. 

Abasto said his client didn’t file the motion then because the city signaled that it would make a good-faith effort to expedite a measure to voters. The city shortly after the election formed a working group composed of two council members, a leader of the Measure T opposition and a Measure T proponent. 

That working group recommended a consultant to work with the city on the revised proposal, but recently has canceled meetings. 

This was the final straw for his client, Abasto said. 

“When was the last time they had a meeting?” Abasto asked. “They aren’t moving at an expedited pace. We believe this process is a sham.

“If you look at the city’s track record, they spent $1 million on the last proposal,” Abasto said. “And it didn’t happen. The only way it’s going to happen is with a court order.”

DCM Properties is one of three entities suing the city over its lack of an adopted housing element. The Building Industry Association has filed its own lawsuit after a judge recently ruled against its motion to enforce a settlement to its previous lawsuit with the city.

And in March, a coalition of affordable housing advocates and lawyers representing affordable housing developers filed a lawsuit against the city demanding it adopt a housing element. 

Abasto said that he thinks a judge could eventually adjoin all of the lawsuits, but doesn’t know if or when that could occur. 

1 comment

Patrick O Connor Parrick July 17, 2017 at 12:14 pm

So much for local control, so much for community character and life. Our self control and way of living is over. As a suggestion find out statically By a Base percentage of population adjusted into zoning per density percentages of what other beach cities requirements are here and state wide. Examples Hermosa Redondo,Manhattan,Balboa Newport, and Solana Beaches. How and whom sets the quota numbers and by what authority.. Use Del Mar as a protected area why the low numbers. Earl Mass Jr has ruled against the city on other land use issues and is a Del Mar loyalist and must be replaced. As a retired builder of 34 years and a former three term BCA board member in Orange County never has such a rule breaker ever happened .

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