Encinitas remains the only city in San Diego County lacking a state-certified plan and has been much maligned by the plaintiffs and other parties for its continued non-compliance. Photo by Carey Blakely
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Judge overturns Prop A for current housing cycle, orders city compliance

EDITOR’S NOTE: This article was updated to include discussion and results of a vote by the Encinitas City Council at a Dec. 12 meeting.

ENCINITAS — Superior Court Judge Ronald Frazier issued a written ruling on Dec. 12 that overturns Proposition A for this housing cycle only and orders the city of Encinitas to adopt a legally compliant housing plan within 120 days.

The ruling does not order the city to implement Measure U or Measure T, however.

Frazier’s decision marks the resolution of two lawsuits filed against Encinitas by San Diego Tenants United and the Building Industry Association over the city’s failure to enact a state-mandated Housing Element.

Judge Ronald Frazier

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. Encinitas remains the only city in San Diego County lacking a state-certified plan and has been much maligned by the plaintiffs and other parties for its continued non-compliance.

But that will have to change within the next four months. Now freed from the restrictions of Proposition A — which gives Encinitas residents the right to vote on housing projects with substantial density increases and building heights greater than two stories — the City Council will be less hamstrung in getting a plan approved.

Instead of needing a Housing Element that passes muster with voters per Proposition A’s mandate, the council can move forward with a plan as long as it gets approval from the California Department of Housing and Community Development. The two previous attempts to secure voter approval for a housing plan, Measure T and Measure U, failed at the ballot box in 2016 and 2018, respectively.

Mayor Catherine Blakespear issued the following statement to The Coast News regarding the ruling, “It seems like a reasoned and measured decision. It preserves the people’s right to vote on future housing upzoning but recognizes that in this housing cycle (2013-2021) we have reached what the judge calls ‘an impasse.’ I appreciate the clarity around the fact that we need to get HCD approval in advance, so that issue doesn’t continue to be litigated.

“I’m grateful that we don’t have any injunctive relief or penalties imposed on the city at this time. I have every intention of having the city comply with the court’s requirements and meet the deadlines. In truth we need to start putting together the housing plan that will go to the voters in 2020, so having this housing plan handled by April will be a relief.”

San Diego Tenants United pro bono attorney Parisa Ijadi-Maghsoodi is not fully satisfied with the judge’s decision but sees it as a step in the right direction. She issued the following statement, “The purpose of this lawsuit was to compel the City to follow state housing law that requires the City to plan for the housing needs of vulnerable low-income families and rezone adequate sites to accommodate the growing affordable housing needs.

“The Court has granted our writ, which means the City must come into compliance with its state law statutory obligation to facilitate the development of affordable housing. In the meantime, we hope the City takes the necessary steps to come into compliance as soon as possible so that an adequate inventory of sites is available.”

Susan Turney, a vocal opponent to Measure U and an Encinitas resident, expressed her hope for the housing plan moving forward, writing, “If the Mayor and Council embrace the Amicus Brief’s six principles filed by Peter Stern, on behalf of residents opposed to Measure U, they will see a clear way forward to an approved Housing Element.”

Stern filed an amicus brief, a legal document from non-litigants with a significant interest in the subject. His brief requested that building heights be capped at 30 feet with elevators not to exceed 28.5 feet; housing be distributed as equitably as possible through the five Encinitas boroughs; in-lieu fees and other ways that developers can avoid building affordable housing on-site be eliminated; 20 percent affordable housing be mandated at each site; and the city-owned L-7 site be developed for 100 percent affordable housing.

Turney’s statement continued, “It appears that the Judge, once made aware of the additional facts as provided in the Amicus Brief, has determined to give the City one last opportunity to incorporate the six principles, which will cause the Housing Element to be approved by HCD and accepted by a majority of the voters.”

Turney clarified that she’s aware there will be no additional vote, but she wishes the people’s voices to be symbolically heard through the adoption of those principles.   

Update: But at the evening City Council meeting on Dec. 12, it became clear that the council does not plan to significantly rework the Housing Element unless the state requires it.

The council voted unanimously to submit Measure U with two minor updates to HCD for review by the end of December, per attorney Barbara Kautz’s recommendation.

Kautz proposed a timeline that takes into account HCD’s 45-day review period. Should the agency deem the Housing Element inadequate, the council would have time to address the concerns and secure approval by the April 11 deadline, she said.

The council quickly voted with almost no discussion. Kautz also confirmed the likelihood that the plaintiffs will ask the court to order the city to pay their legal fees.

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