The city of Encinitas recently filed a lawsuit against 100 unnamed defendants of a resident-backed group called Preserve Proposition A in a claim to clarify whether future housing plans need to be held for a public vote.

The lawsuit is the latest in a series of legal squabbles between Encinitas, housing advocates and the state of California as the city’s latest housing element was deemed compliant under state housing law by the Department of Housing and Community Development on Oct. 10.

The city became compliant under state law well within a 120-day deadline given to it by Superior Court Judge Ronald F. Frazier in a ruling last December that struck down provisions of Proposition A, a measure passed in 2013 that required any housing rule changes be subjected to a public vote.

In the December ruling, Proposition A was identified by city attorneys as the reason why Encinitas’ housing plans couldn’t comply with state housing requirements as the last two housing elements, Measure T in 2016 and Measure U in 2018, were both rejected by voters.

All of this led to this most recent lawsuit, which garnered sharp criticism from the public as residents voiced concerns over its implications on the First Amendment and their wallets.

“What I raised with the attorney representing the city is, why are you picking on the city’s residents in order to do that?” said Everett DeLano, the attorney representing Preserve Proposition A.

“It’s pretty much a violation of the right to free speech, I’d say.”

DeLano also raised concerns over the mechanisms of the lawsuit, saying, “Voters in any city in California, and the state, have a constitutional right to do an initiative. Whatever it is. If they get it passed, it becomes the law of the land.”

He then issued the question of why the state’s housing authority couldn’t be named in the declaratory relief lawsuit rather than the residents of Encinitas.

For others, the action taken by the city was a long time coming.

“No one should be surprised that this lawsuit is taking place,” local environmental and land-use attorney Marco Gonzalez said. “The City Council discussed it back at a public hearing last February.”

Gonzalez also took issue with the characterization of the lawsuit.

“The people who are freaking out over it (the lawsuit) and saying that the city is suing its citizens are nonsensical at best and conspiratorial at worst,” Gonzalez said. “The people who say this, they simply don’t understand legal proceedings and how the legal process works.”

Declaratory suits are in themselves a different kind of lawsuit. While this is a lawsuit in the vein of an action taken by one party against another in civil court, declaratory lawsuits are a vehicle to have a judge determine how the law is interpreted so the two parties can continue legal action.

“The lawsuit seeks to resolve what should have been resolved in the earlier action,” Gonzalez said. “When they say that they are being targeted, it makes no legal sense, and it’s unequivocally b******t,” Gonzalez said.

On the question of why the city does not name HCD as the defendant in its lawsuit, Mayor Catherine Blakespear said that the city was directed by the state to do this action.

“We named as the defendant a group called “Preserve Prop. A” because this group attempted to intervene in the previous housing lawsuit on this exact question,” Blakespear said in emailed comments. “Litigation, especially involving residents and the state of California, is never our first choice. But we had no choice.”

“We asked the state if we could forgo this legal action because the sixth housing cycle doesn’t require more up zoning,” Blakespear continued. “The state said no to the city because the state believes that the city’s dependence on voter approval for up zoning will inevitably result in us falling out of compliance with state housing laws.”

According to the city and Gonzalez, because Encinitas and HCD agreed they needed another party to argue with, Preserve Proposition A was the natural defendant based on its past involvement in the issue.

Dolores Dalton, one of the attorneys representing the city, relayed the point: “No monetary relief is sought against Preserve Proposition A. This is to resolve potential conflicts between state law and Encinitas’ Proposition A with respect to housing elements and related implementing legislation only.”

Even though the city is not seeking money from the group Preserve Proposition A, Everett DeLano was not convinced that Encinitas wouldn’t attempt to seek money for legal fees in the future.

DeLano cited this concern on how cities regularly sue for legal damages and how in particular Encinitas had sought compensation from a number of his past clients from different suits.

In response to DeLano’s concern, Blakespear and Councilwoman Kellie Hinze were asked whether the city would seek compensation against the residents involved with Preserve Proposition A in the future.

“Never,” Blakespear replied via email.

Hinze had not responded to the question as of this report’s publication.

Speaking to whether the city could seek compensation in the case, Gonzalez said: “No. In order to recover attorneys’ fees from the losing party, there has to be a statute providing for it. Code of Civil Procedure 1021.5, which would be the only arguable avenue for fee recovery, would not apply here for various technical reasons.”

Housing crunch unresolved amid lawsuits

Encinitas has been no stranger to housing lawsuits relating to Proposition A as it has been at the center of four, which have cost the city $1 million through its own and opponents’ legal fees.

According to Hinze, the issue has been costly “not only due to the high costs of legal fees,” she said, “but also in the time lost that we have failed to create new housing and not done our part to tackle the statewide housing and homelessness crisis.”

She also said that while Proposition A is the law of the land and will remain intact for upcoming land-use decisions, “We as a city need to be able to plan housing for all income levels reflected in our community, and Prop. A has been identified as a constraint in that effort.”

Multiple times in his interview for this report, Everett DeLano said that Proposition A does not mean no more additional housing, saying that “there’s plenty of opportunity to build more houses.”

DeLano said that Proposition A adds “a layer of protection” so a developer doesn’t come along and “buys the votes of three council members,” because, “all you need is a three-to-two vote” to win a housing dispute.

Marco Gonzalez said he is skeptical that any change in the housing element can be agreed upon by Encinitas’ residents, referring to Measures U and T failing to pass a public vote.

“My honest belief is that there is no plan that will result in higher-density housing that existing residents would agree upon,” Gonzalez said. “The people just don’t want more traffic, they don’t want it to be more crowded. Some don’t want any more brown people, poorer people, or whatever.”

Near the end of the interview for this report, Gonzalez remarked: “Ultimately, it’s incredibly important that every city can be accessible for every economic level. It is totally unfair to our teachers, our restaurant workers and our gardeners that they can’t afford to live in the city alongside the residents they serve.”

“Housing is too important to say no.”

Despite what comes from the lawsuit, the San Diego Association of Governments conducted a Regional Housing Needs Assessment that calls for an additional 171,685 total units for the sixth housing element cycle throughout the years of 2021-28 with around 1,000 additional units that must be built in Encinitas.

Cities across California are seeing similar calls to expand housing as property values and the homeless population rise. Cities such as Encinitas, which has the lowest amount of multifamily housing in the county, will increasingly be pressured by the state to build.

Cameron Niven is a local freelancer writer

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