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Lawyers Threaten to Sue Del Mar and Encinitas Over Housing Plans

Two environmental attorneys are gearing up to force coastal cities’ hands in making way for new housing. Attorneys Marco Gonzalez and Cory Briggs have said they’re planning to file lawsuits against Encinitas and Del Mar over land use issues that have ended up on the ballot in both cities this November.

Two environmental attorneys are gearing up to force coastal cities’ hands in making way for new housing, as required by state law.

Attorneys Marco Gonzalez and Cory Briggs have said they’re planning to file lawsuits against Encinitas and Del Mar over land use issues that have ended up on the ballot in both cities this November.

Measure R in Del Mar is one of several local ballot measures across the state that would give voters the right to approve or reject projects that exceed the number of homes allowed on a property.

Meanwhile, Measure T in Encinitas gives the city’s residents the choice of adopting the city’s housing element – a state-required plan that all cities must have, showing where they would allow more housing to be built. Usually City Councils just adopt these plans, but Encinitas voters in 2013 approved a measure forcing all zoning changes to the ballot, which now applies even to this state-mandated plan.

Briggs is representing the Affordable Housing Coalition of San Diego County, a nonprofit that advocates for more low- and middle-income housing.

According to a June letter to the city, he plans on suing Del Mar if the city doesn’t follow through with increasing density in a certain part of the city designated for more housing in its 2013 housing element. The area, the North Commercial Zone, is also the site of a controversial development project, the Watermark Del Mar, which spurred Measure R.

“Despite the City’s promises, and its commitments to discreet timelines for rezoning, the City has failed to take necessary steps to facilitate the construction of even one affordable housing unit,” wrote Briggs in the letter.

During a panel at the San Diego Housing Federation’s annual affordable housing conference, Gonzalez announced that if Measure T doesn’t pass in Encinitas, he will take legal action against the city.

He said he will be sending the city a letter, laying out the potential litigation and the risks it faces if the measure doesn’t pass.

Encinitas has already been sued twice for not having a housing element – once by the Building Industry Association and once by a local developer. The city spent $325,000 settling those lawsuits, and agreed to put the housing element on the November ballot.

Gonzalez said he’ll argue the city is obligated to adopt a housing element, regardless of the local initiative passed in 2013.

“Basically, I’m going to tell the City Council that they have to adopt a housing element outright and that’s it,” he said after the panel. “State law pre-empts city law when it comes to housing.”

But he isn’t stopping with Encinitas.

Gonzalez also said he plans on looking at other cities across the county to see if they actually increased the development potential on properties that they marked as growth opportunities in their housing elements. He suspects some, like Del Mar, said they would increase density to appease the state and then never followed through.

During the panel, Gonzalez said that since the state hasn’t been heavy-handed in enforcing its affordable housing policy, it’s up to lawyers to make sure local jurisdictions are doing their part to address the state’s housing affordability issues.

“They system’s clearly broken,” he said. “Housing law is a joke in this state in terms of enforcement.”

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