ENCINITAS — A trio of lawsuits that question whether Encinitas’ Proposition A pre-empts the city’s ability to pass a long-overdue affordable housing plan will be heard in April.
April 30 will be the date Superior Court Judge Ronald Frazier will hear oral arguments in the three lawsuits — Building Industry Association vs. City of Encinitas, San Diego Tenants United vs. City of Encinitas and DCM Properties vs. City of Encinitas.
While not consolidated, the cases essentially ask the court to rule on the same issue: whether the 2013 voter-approved proposition, which requires, among other things, the public to weigh in on major changes in land-use, and building heights beyond 30 feet, pre-empts the city’s ability to comply with state law and adopt a housing element.
State law requires cities to adopt housing elements, which map out where and how cities will accommodate housing for low-income residents by zoning for higher-density housing products. Encinitas hasn’t passed a housing element update since the early 1990s.
City officials are working on another housing element plan to bring to voters in November, nearly two years after voters rejected its most recent attempt, Measure T. Recent changes to state law forced the city to make significant changes to the proposal that previously was making its way to the council for placement on the ballot.
City officials recently came to a consensus on the sites that will be earmarked for denser zoning as part of the housing element, and staff will next conduct an environmental review before bringing the full City Council the proposal, at which time the council will vote whether to place it on the Nov. 6 ballot.
But at least one attorney following the cases said that the April 30 date is not only important because of the current housing element attempt, but because of future ones as well.
“This matter has to be decided regardless of what happens in November,” said Marco Gonzalez, who a day after the election threatened to sue the city if they certified the 2016 Measure T results. “We are going to have another housing element update due shortly in 2021, and what we need to know is does that (housing element update) need to go up to the voters in 2021 as well. That’s why it is so important, regardless of the timeline.”
The lawsuits argue that by requiring the housing element to go before voters, essentially the city has decided the public will decide whether the city will follow state law, which is illegal.
“Under these facts, does Proposition A’s requirement for an affirmative vote of the people before the required rezonings (and associated land use changes) become effective conflict with the City’s obligations pursuant to state Housing Element Law?” the San Diego Tenants United lawsuit states. “The answer to this question is yes, the requirement that zoning changes necessary to comply with state housing element law be approved by the voters is pre-empted.”
Encinitas has argued that the question is not ripe legally because they have only attempted to go before the voters once with a housing element proposal.
Encinitas has been in the crosshairs of developers and other interests in recent years on issues ranging from the city’s stance toward density bonus developments to, most recently, its lack of an updated housing element.
The Building Industry Association and DCM Properties had previously settled their lawsuits against Encinitas with the condition that they would approve a housing element in November, which did not happen.
San Diego Tenants United and a county resident filed the third lawsuit against the city in April 2017.