ENCINITAS — The consequences of failing for years to enact a legally compliant housing plan will be made clear to the city of Encinitas on Dec. 12, when Superior Court Judge Ronald Frazier renders his final decision.
The city has become a much criticized poster child for non-compliance with Housing Element law, which requires cities to provide enough housing to meet the needs of all its residents — from very-low income earners to above-moderate ones.
The requirements are seen as a collective effort to ease what’s been perceived as a housing crisis in California. Encinitas is the only city in San Diego County lacking a state-certified plan.
The plaintiffs suing Encinitas, San Diego Tenants United and the Building Industry Association, contend that when housing developments do not get built, the building industry suffers a setback — as do low-income tenants whose affordable-housing options get unfairly restricted.
Building Industry Association attorney Tim Hutter said in the Vista courtroom on Nov. 28, “Encinitas is the worst offender in the state of California when it comes to housing compliance.” His organization also sued the city in 2014.
“Given the politically charged nature of this issue in Encinitas, it is clear that the mayor and City Council need the court’s guidance,” Hutter said. The city has spent more than $1 million so far to defend against housing-related lawsuits.
Encinitas Mayor Catherine Blakespear said, “I can’t think of anything more the city could have done to craft a plan that both housing regulators and voters would accept. We really did try our best, both in terms of effort expended and compromises to gain consensus. So we find ourselves here,” meaning in court and at a judge’s discretion.
Frazier’s ruling will wait until the county and city have officially certified the ballot results of Measure U. The controversial housing initiative failed, with 53 percent of voters opposed, which makes the judge’s decision to wait a mere formality. Measure U sought to allow increased housing density up to three stories high at 15 potential sites in Encinitas. A similar ballot initiative, Measure T, was soundly defeated in 2016.
Encinitas’ legal counsel argued that the city should be made to adopt Measure U. Attorney Dolores Bastian Dalton of Goldfarb & Lipman described that plan as “a workable and practical solution that gets all three parties out of the impasse that we’re in.” She said other potential options that require more community feedback and political consensus would “only embolden the anti-housing group.”
Dean Turney, an Encinitas resident and vocal opponent to Measure U, said after the hearing, “I think it’s sad that the city is blaming citizens for its own failure to guarantee affordable housing. We’re being unfairly painted as anti-affordable, but we’re just anti-McMansions.”
Turney said the “no on U” camp wants housing developments distributed equitably among the various areas of Encinitas rather than allocating 44 percent of them to Leucadia, for example. That and other demands — such as capping building heights at 30 feet, eliminating in-lieu fees, and developing the city-owned L-7 site for 100 percent affordable housing — fell on deaf ears at City Council meetings, Turney said.
Another prominent opponent to Measure U, Peter Stern, submitted to Frazier an amicus brief, a legal document filed by non-litigants with a significant interest in the subject. Stern’s filing requested that certain requirements, like the ones described by Turney, be incorporated into the judge’s order and then put before voters.
Stern’s filing argues that the city “cannot, without a severe conflict of interest, represent the interests of the majority of voters” given its failure to endorse a Housing Element that could pass muster with the people.
But the fate of Proposition A — which gives Encinitas residents the right to vote on substantial zoning increases and on projects with building heights greater than two stories — remains unclear.
Hutter, attorneys for Tenants United, and Encinitas’ legal counsel all expressed to Frazier that Proposition A, adopted in 2013, has impeded the creation of affordable housing.
While Encinitas requested that Proposition A remain valid in future housing cycles but “severed in this particular cycle,” as the defense put it, Hutter pushed to invalidate the initiative now as well as in upcoming cycles.
The plaintiffs also attacked the legal adequacy of Measure U and expressed doubt that the California Department of Housing and Community Development would find the plan compliant and certifiable.
In addition, San Diego Tenants United attorney Parisa Ijadi-Maghsoodi disputed Encinitas’ carryover number, which is the number of affordable units left unfulfilled in one housing cycle and carried forward to the next.
Encinitas City Councilman Tony Kranz said after the hearing that implementing Measure U, should the judge choose to order it, would “get us past this cycle.” Kranz expressed hope for a fair outcome that no party would appeal. Further litigation, he said, would be “counterproductive to the goal of creating affordable housing.”