Judge suggests mediation, orders Encinitas back to court on Nov. 28

ENCINITAS — Encinitas’ days of non-compliance with state housing law appear to be numbered.

On Nov. 13, Superior Court Judge Ronald Frazier made it clear that while the court is giving the city two more weeks for the final vote of Measure U to be tallied, it was necessary to soon find “a remedy,” he said. The next court hearing will be on Nov. 28 at 1:30 p.m. in Vista.

The lawsuits brought against Encinitas by San Diego Tenants United and the Building Industry Association of San Diego center on the city’s failure to enact a Housing Element, a state-mandated plan that details how a city will meet its housing obligations, particularly as they pertain to low-income residents.

The suits present two sides of the same coin: The building industry suffers when housing developments do not get built, while low-income tenants suffer when there is not enough affordable housing available to them, the plaintiffs contend.

At the hearing, Frazier referred to the failure of Measure T in 2016 followed by the presumed failure of Measure U — both ballot initiatives intended to get Encinitas compliant with California housing law — when he said, “After two bites at the apple, an impasse has occurred.” He made it clear that the court would now have to intervene.

On April 30, Frazier gave Encinitas until Nov. 13 to secure voter approval for a housing plan. Unofficial election results show 52.5 percent of Encinitas voters saying no to Measure U, while 47.5 percent have so far voted in favor. Attorneys for the city argued that with uncounted ballots at large, the court should wait to render a decision.

The judge granted that request but said he was “dealing with probability and statistics, as did the mayor.” Encinitas Mayor Catherine Blakespear announced in a newsletter last week that it appeared that Measure U would fail.

Tim Hutter, the attorney representing the Building Industry Association, told The Coast News, “The judge has to wait for the final election results before acting, but the writing’s on the wall.”

Hutter argued in court that Encinitas should be given no more than 120 days to become compliant, and he pushed for the invalidation of Proposition A as it pertains to the creation of affordable housing.

The attorney representing San Diego Tenants United, Parisa Ijadi-Maghsoodi, agreed with those points, stating that Proposition A has “impeded the city’s ability to comply with state law.”

Proposition A gives Encinitas residents the right to vote on major zoning changes, such as those needed to upzone parcels of land to allow for high-density, affordable housing. The residents, not the City Council, have the authority to make those types of final housing decisions.

The plaintiffs also questioned the legal adequacy of Measure U and whether the state housing authority, the California Department of Housing and Community Development, would find the plan compliant and certifiable.

In June, the City Council removed four sites from its high-density housing parcel list, which brought the affordable-housing unit count below the 1,600 strongly advised by Housing and Community Development and the city’s legal counsel from Goldfarb and Lipman.

The changes also potentially violated the housing law that mandates that 50 percent of the sites selected for development be vacant, but the city felt it could successfully argue that a particular site be considered vacant. The council made those decisions on a 3-2 vote after getting a much sought-after letter of pre-certification from Housing and Community Development. Fearing that the plan would not pass muster with voters, the council knowingly approved a revised plan that was legally dicey.

Goldfarb and Lipman attorney Dolores Bastian Dalton told the judge that the city had given the Housing Element “its best shot.” Frazier responded, “This is the second time it’s given its best shot.”

Frazier recommended that the two plaintiffs and Encinitas pursue mediation before reconvening in court on Nov. 28. But Blakespear foresees difficulty in that path.

She told The Coast News, “I don’t see how the city could mediate over the citizens’ right to vote, as Prop. A’s validity was established in an election by the vote of the people. Whether mediation is possible in a more narrow scope that doesn’t involve the right to vote is undetermined.”

In closed session on Nov. 14, the Encinitas City Council will discuss the possibility of mediation with its housing attorneys.

Given how difficult it was for the council to decide which parcels to upzone because of impassioned resistance from residents, City Councilman Tony Kranz wondered if mediation had the potential to “take politics out of the equation but not the controversy.” But he noted that more information was needed from the city’s legal team as to how mediation could work in this case.

Kranz observed, “The judge is clearly struggling with what the right remedy is for this predicament we find ourselves in.” Kranz hopes the parties or judge can arrive at a solution that balances state compliance with the will of the people as was asserted through the democratic process.

For her part Ijadi-Maghsoodi said, “We are glad to be closer to a decision on the merits of this case. The city has been and continues to be in violation of state law. Otherwise, our clients would not have taken on this litigation.”

Although Ijadi-Maghsoodi serves as the assistant director of public service at University of San Diego School of Law, her work on this case is unrelated. She is providing pro bono services and took a vacation day from USD Law to volunteer her time.

Blakespear felt that the various issues presented by the plaintiffs in court, from Proposition A to the remedies for non-compliance to the legal adequacy of Measure U,  “complicated the possible resolution.” She said, “These issues are separate and distinct, but they emerged in the court hearing all jumbled together.”