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.”
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The private property owners of the proposed upzoned properties can’t be required to build 100% restricted low income/affordable housing. The state law requires the upzoning but no requirement that 100% of the low income/affordable units zoned for the property be built on each property. The BIA developers reap a windfall in profits when these properties are upzoned and then filled with market rate condos. Once these properties are built out with the market rate condos and few restricted income units, the state requires that the city upzone more properties at high densities so the BIA developers can reap more profits without building 100% restricted low income units. Included in the state requirement is the “carry over” units that weren’t built to be added to the new low income housing units issued by the state for the next building cycle. The required number of housing units that should have been on the ballot was approximately 800 units. Actually, no one really knows the exact amount, which could have been below 800 units. Also, the Mayor and Council added another 600 units gratis as a “buffer” in case the other properties didn’t have restricted low income housing units. There’s no state law requirement for a buffer of more upzoned properties. What voters were given on the ballot was an inflated number of 1,504 restricted low income units. There’s also the question of the legality of the Mayor and the Council adding an upzone for a developer that is not part of the housing element update. The L-7 property that was removed from the list of low income upzoned (25-30 units) properties was included in the ballot to upzone from RR1 to R3.
The reporter should state how much low income housing, being labeled as affordable housing, the BIA developers will build on the city selected very low density (some are R1, R2) private parcels. From all indications, no more than 15% and probably closer to 10% or less of low income housing may be built and the rest will be market rate condos. The City Council is moving away from requiring 25% (discussed in October Council meeting). Does the Court have this information? Less than 200 low income units out of 2000 condos (if density bonus) won’t make a dent in the RHNA numbers assigned by SANDAG and the State. Why is Encinitas being sued when 95% of the other cities and counties haven’t come close to building their required low income housing (per a state report). Why isn’t the BIA and San Diego Tenants United filing a class action suit against the other 481 cities in California for not meeting state requirements? To placate the BIA and developers, this City Council has removed many of the safeguards of the current Housing Element that is in the General Plan. Some of these safeguards remain in the Housing Elements of other cities and, yes, the officials at HCD have found that those Housing Elements have substantial compliance with State Law. The City Council added more policies than required by law. Many of these new policies will be difficult if not impossible to carry out which leaves another wide loophole for more lawsuits. Additionally, the new housing laws that took effect in January of this year are being applied to only a few cities. The rest of the 450 cities won’t have to abide by the new January 2018 law until after 2020. By that time the law may change. In which case, the Encinitas Housing Element will be held to this law that may be more draconian than future laws. The property owners of the selected parcels will reap a windfall with the upzoning. Does the Court have this information? Is there a law principle that there shouldn’t be an enrichment for the property owners?
Is the City of Encinitas mounting a Sacramento lobbying effort to either repeal the BIA sponsored legislation requiring local governments to approve more new housing, or to get the state legislature to exempt Encinitas from that requirement? If not, city voters should get rid of their city hall politicians. Its time local governments band together to force Sacramento to get out of the land use zoning business and stop shilling for the BIA.
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