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Encinitas files lawsuit against residents, says Proposition A preventing them from complying with state law

ENCINITAS — The city of Encinitas has filed a lawsuit against the residents behind Preserve Proposition A, saying the vote requirements are stalling the city’s efforts to produce a timely revised housing element, as required by state law.

In the lawsuit, filed on Sept. 6, the city claims it is unable to meet its obligations under state law to adopt revised housing elements, and pass related implementing legislation, due to the local measure, which gives Encinitas residents the right to vote on housing projects with substantial density increases and building heights greater than two stories.

“The relief sought in the case is a judicial decision about the applicability of the vote requirements to future housing element updates,” the city’s attorney Dolores Dalton said in an email last week. “This is to resolve potential conflicts between state law and Encinitas’s Proposition A, with respect to housing elements and related implementing legislation only.”

Dalton said the city is not seeking monetary relief.

State Housing Element law requires cities to provide enough housing to meet the needs of all its residents, from very-low income earners to above-moderate ones.

The city has been subject to multiple lawsuits, by both the building industry and affordable housing advocates, because of its lack of a housing element. Voters rejected the city’s most recent attempts at passing a housing plan in 2016 and 2018.

Last December, Superior Court Judge Ronald Frazier overturned Proposition A for the current housing cycle only and ordered the city of Encinitas to adopt a legally compliant housing plan within 120 days. The City Council adopted its latest affordable housing plan in March.

The state approved that plan just last week, which currently puts the city in compliance with state law and avoids a loss of grant funding.

The deadline for the city to adopt its next housing element is in April 2021. The city’s lawsuit seeks a ruling that for that cycle, and all future housing element cycles, housing element updates and related implementing legislation are not subject to the vote requirements.

Everett DeLano, who represents Preserve Prop A, says the lawsuit against his clients is a classic SLAPP suit, a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

“It’s really a classic example of people expressing their concerns and then the city turning around and suing them because they expressed those concerns,” DeLano said. “We could probably file an (anti-SLAPP) motion that would basically get it dismissed if we wanted. On the other hand, I think the residents also want to have their day in court.”

DeLano added, “There is a false dichotomy being placed here, where it’s Prop. A versus compliance with state law, and that is not what should be happening, that’s a false narrative that’s being pushed by the state, HCD and by the city.”

DeLano said Proposition A is in place to add an additional layer of protection in the event that a developer or a project comes along and substantially deviates from what the city’s zoning laws allow. He said similar propositions are in place in Solana Beach, Escondido and Loma Linda in San Bernardino County, which is the one that Proposition A is modeled after.

“There’s no other city that has required a court order to get out of these requirements in order to have an adequate housing element,” DeLano said before posing the hypothetical question. “So, what is it that is so special about the city of Encinitas that they think they need to get out of requirements that other cities can meet?”

DeLano said there needs to be a way to find a balance between the requirements of Proposition A and the requirements of the city’s housing element.

“In a normal world what would normally happen is the city would be defending Prop. A,” DeLano said. “Prop. A is the law of Encinitas, whether they like it or not, and they should be defending it just like any other statute in Encinitas.”

1 comment

taxpayerconcerns October 18, 2019 at 2:02 pm

The Building Industry Association of San Diego County (BIA) in a January 18, 2019 letter to the State Housing and Community Development Agency (HCD) demanded of HCD that HCD make it very clear to the city what BIA wanted in the city Housing Element. February 4, 2019 the HCD send a demand letter to the Encinitas city manager with the BIA demands but without notification that the HCD demands were actually the Building Industry Association demands. These demands then became what HCD and the Mayor/Council declared as meeting state law requirements.
This trickery by the BIA, HCD, and the Mayor/Council would have been exposed if the voters could have voted on this new Housing Element.

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