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A Judge Considers Stepping in After Encinitas Failed – Again – to Pass a Housing Plan

Much of coastal California is opposed to dense development. But opposition in Encinitas has reached unprecedented heights, testing the limits of local control while a statewide housing crisis unfolds.

Homes overlook the San Elijo Lagoon and the beach in Cardiff by the Sea. / Photo by Jamie Scott Lytle

A San Diego County Superior judge sounded open Tuesday to suspending an Encinitas law giving locals final say over major land-use changes. That law is one reason the city has for years been unable to write a housing plan that satisfies state regulators.

Last week, Encinitas residents rejected Measure U, a ballot measure — the second in two years — that would have allowed officials to update their housing plan for the first time since 1992. California mandates that cities accommodate their fair share of regional housing needs, and that includes making way for more low-income options.

Cities aren’t required to actually build on those sites or to find a developer willing to do it. Still, voters have twice rejected a document that merely identifies locations for possible new housing.  

“After two bites of the apple, it strikes me that an impasse has occurred, and the court has to get involved,” said Superior Court Judge Ronald Frazier.

Much of coastal California is opposed to taller, denser development, the type that’ll add more apartments and put more cars on the road — and, of course, potentially block ocean views. But opposition in Encinitas has reached unprecedented heights, testing the limits of local control while a statewide housing crisis unfolds.

Another court hearing is scheduled at the end of the month, and until that time, Frazier asked the various interests entangled in a lawsuit — who represent low-income tenants and developers — to consider a mediator.

By not having a housing plan in place, Encinitas has been breaking California law for years. It is the most housing-averse city in San Diego County, with the lowest percentage of multifamily units. Its residents and elected officials can’t agree on what the housing supply should look like.

The tension is partly cultural and historical — almost immediately after incorporation in the 1980s, the new Council proclaimed a moratorium on growth — and manifests itself in a deeply held belief that officials are undermining their interests at every turn.

Normally, decisions over density and building height would fall to the city’s five City Council members. But in Encinitas, voters hold the authority thanks to Proposition A, a 2013 ballot measure that was championed by some of the same people who’ve helped kill housing plans in recent years. Officials are prevented from altering the landscape in any substantive way without the explicit permission of the public at election time.

“It made housing tremendously more political,” said Mayor Catherine Blakespear.

She didn’t agree with every aspect of the plan that the city put before voters last week — which serves as a blueprint for where construction could possibly go — but she accepted the process as fair.

“In the end, it’s a compromise,” she said.

Measure U would have added 1,504 new units, allowing the owners of 15 privately owned sites to construct 25 to 30 housing units an acre and thereby increase the total housing supply in the city by 6 percent. The Nov. 6 vote hasn’t been certified, but the measure is poised to fall short by about 1,100 votes, a narrower margin than another housing plan conceived by the City Council in 2016.

On both occasions, the City Council drew up proposals that its members could live with, but they were also constrained in how they could communicate to the public in favor of a yes vote.

“That makes it harder to speak ordinary English as opposed to lawyer English,” said Sue Reynolds, president and CEO of Community Housing Works, a San Diego nonprofit that develops, rehabs and runs affordable apartments.

As far as Reynolds sees it, the other problem with making complex land use changes at the ballot box is if someone didn’t like one of the 15 sites selected, they were incentivized to vote no on the entire plan.

Opponents of Measure U portrayed it as a giveaway to developers and “such a scam,” according to one Coast News op-ed, “that even Goldman Sachs would blush.”

Chief among the complaints raised by Peter Stern, a retired attorney who co-wrote the official argument against Measure U, was that the City Council put too many units too close together. The final plan sent to voters for their approval smacked of “Jim Crow,” he said, comparing it to laws crafted after the Civil War to disenfranchise black people.

Instead, Stern would have preferred that affordable housing be spread evenly across the city’s five neighborhoods, he said, citing the “extraordinary social benefits” of integrating low-income housing.

Bruce Ehlers, an engineer and the primary author of Prop. A, who used to sit on the Encinitas planning commission, acknowledged that the initiative had prevented the city from complying with state law. But he said it was doing what he and others had hoped it would — inform the voters of how the “community character was being eroded.”

Ehlers compared developers to the robber barons of the late 19th century, who built commercial empires by unscrupulous means, and he spoke of the reason behind popular initiatives in California.

“It was the undue influence of money on elections,” Ehlers said. “Sound familiar?”

Some of the opponents of Measure U, Blakespear said, offered up alternative housing plans that would not have complied with state law. There was some debate Tuesday in court over whether the housing plan contained in Measure U was legally adequate because it hadn’t been submitted to the appropriate state regulators ahead of the election. There was also a sense of urgency going forward, because the housing plan must be in place by 2020 — and then officials need to get to work on yet another new plan that’ll estimate housing needs for roughly the next decade.

Blakespear said she’s worried that the longer the city takes to craft something that satisfies both residents and the state, the harder the process is going to be. The state is becoming increasingly prescriptive in the kinds of sites it expects cities to find, she said, and “we’re already scraping the bottom here.”

For instance, the latest guidelines require cities to put 50 percent of its denser developments on vacant land. Previously, many of those projects could go on top of existing mixed-used sites.

The Encinitas City Council seemed behind a housing plan in a way that past ones haven’t.

The city’s reputation for being housing-averse is well-earned. Officials have spent years trying to evade and defy the state’s density bonus law, which gives developers the option to build more homes on a property than the city allows if they agree to build some low-income homes in their project. Most of the affordable homes in Encinitas in recent years have been built because of that law, despite roadblocks set by City Hall.

At a City Council meeting in July 2014, a representative of the San Diego Building Industry Association asked why Encinitas continued to make the development of smaller homes so difficult. His question drew laughter from a group of residents who mocked both his sincerity and the ability of the density bonus law to do anything positive in their community.

At times, officials have seemed caught in the middle. At Tuesday’s court hearing, an attorney for the tenant’s association proposed a moratorium on all new building permits in the wake of Measure U’s failure — an obvious attempt to punish the city for continuing to defy state law and push it towards finally getting a plan on the books. A city attorney immediately pushed back against the idea, telling the judge that it would only “embolden” the opponents of Measure U.

Judging by its language and actions in recent months, the City Council is softening on the issue. This summer, it tweaked the municipal code so that developers wouldn’t be allowed to pay a fee in lieu of building denser affordable housing projects that were included in Measure U. Opponents perceived this technical change as vaguely nefarious, but affordable housing advocates saw it as a good thing.

“In the past, developers often negotiated the payment of in-lieu fees — this option is now off the table,” said Bob Kent, an Encinitas resident and co-founder of Keys4Homes, which lobbies on behalf of low-income tenants, in an email.

Last month, the Union-Tribune reported, the city also asked a consultant to study the effects of raising the percentage of low-income units that need to be included in housing projects.

The city’s inability to update its housing plan has opened it up to at least three lawsuits since 2014, and the legal tab is $1 million and counting. Three organizations —the BIA; DCM Properties, a real estate agency; and San Diego Tenants United, which represents low-income renters — have alleged in their own ways that the city is hiding behind Prop. A.

The judge gave the parties a seven-month break in the case last spring, so that officials could put a new plan before voters. Now that Measure U has failed, arguments by the tenants and the builders are expected to resume on Nov. 28.

Both groups have argued that the local initiative cannot pre-empt state law.

“The BIA’s goal is not to take down Prop. A,” said BIA attorney Timothy Hutter, “but to the extent that it conflicts with state housing law and prevents the city from being compliant, it’s clear they can’t co-exist.”

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