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The Encinitas City Council met last week to approve a plan, required by state law, to show how the city will make way for enough new housing to accommodate a growing population.
Many residents offered Council members a different option entirely: What if we just ignore state law?
Mayor Kristin Gaspar put the idea to the city’s legal counsel. Can we just not do the thing the state says we need to do?
“You are in the breach of something very consequential, and if you choose to simply say, ‘We’re not going to,’ please don’t believe that that is the end of the day and all things went well,” said Mike Durkee, the attorney.
Encinitas in 2013 passed Proposition A, which mandates that voters must weigh in on any land-use changes in the city. Meanwhile, every city in California is required to update its housing element, a plan that shows how it will meet the growing demand for housing, every four years.
The prospect of building more homes is unpopular in many coastal communities, Encinitas included. Yet the city needs to demonstrate where it can build 1,200 housing units, its share of regional growth expectations.
Encinitas is now in a tough legal position. Local voters could reject the city’s plan to accommodate new housing – a plan required by state law.
”The court might very well say, ‘I don’t know that Prop. A is legal when it tries to stand in the way of something that you’re required by law to do,” Durkee said. “But if you can make it work, and you can secure (voter) support, then I don’t have a problem with you having done that, because it’s an issue that took care of itself.”
Legal trouble over housing law is nothing new for Encinitas. Developer David Meyer is already suing the cityit for not implementing a separate state law that lets developers build more homes on a property if the project includes low-income homes.
Meyers has now amended his lawsuit to include the discrepancy between Prop. A and the state’s housing element law.
Prop. A can’t keep the city from making good on a state requirement, he argues.
“You need to get it done, and you don’t need a vote of the people,” Meyer said. “You could have a vote, but it would only be advisory.”
Specifically, Meyer contends that state mandates trump local initiatives, like Prop. A.
Encinitas already abandoned one attempt to meet the mandate before a 2013 deadline, over dissatisfaction with specific areas a consultant suggested could be targeted for new development. It’s the only city in the county, and one of a few in the state, without a legal housing plan.
Missing that deadline exposed the city to lawsuits. In 2015, Encinitas settled a lawsuit with the Building Industry Association, which said the city needed to put an update on the November 2016 ballot, or give up its authority to issue building permits.
Meyer didn’t agree with the settlement. Putting the housing element to voter approval is as good as ignoring state law, he said.
“Do I think if it’s subject to voter approval it has a prayer? No, it doesn’t have a prayer,” Meyer said.
At one point, city staff proposed exempting housing element updates from the city’s requirement for voter approval. Staff removed that language after hearing from residents.
“The former draft zoning standards and land use element did suggest an exception to the voter requirement, and it did at one time suggest at one time that a supermajority of Council could make subsequent amendments without the need to go to a vote of the people,” planner Michael Strong said at a June 15 hearing.
This is the first time the city will send a housing element plan to the ballot. Two of the proposed changes in the plan are drawing widespread criticism from voters, especially those in Cardiff.
Hence, the uncertainty.
One of the unpopular changes is based on a guideline to build housing for lower-income residents more densely. The second change would raise the maximum building height to three stories in certain areas, lifting a two-story limit that was established by Prop. A.
The city previously tried to get creative with solutions for providing affordable units, which would have limited the number of properties that needed the taller, denser buildings.
That was a so-called granny flat program that tried to encourage homeowners to bring illegal, additional units on their properties up to code so they would count as affordable housing. But the granny-flat idea was a flop.
Fourteen distinct sites are targeted for the new zoning in the plan that will go to voters, including one in Cardiff where the City Council removed the three-story height increase over objections from residents.
Those sites were chosen through a two-year process of community meetings and workshops, and some of the sites that were originally designated for upzoning were removed from the final map after residents protested.
Durkee, the land-use law attorney, said at the Council meeting that he’s supportive of sending the draft to voters, but it’s unlikely that a defeat at the ballot box is the end of the process.
“Ultimately, I don’t think the vote, if it’s no, will be the last, and ‘My goodness, we dodged a bullet and can go back to business as usual,’” he said.
If voters approve the plan, state housing authorities will then check that it doesn’t constrain development. Strong said state approval would also mean the city would need to update its climate action plan to be consistent with the housing element within 20 months.
That, too, could trigger another vote under Prop. A, but Strong said he believed the timeline was achievable.
Still, Meyer said a plan that can win support from development-averse voters probably isn’t one that will actually attract developers to build the new homes envisioned in the plan.
“The question is: Is the (plan) that’s being pushed capable of being built at the density they’re proposing,” he said. “I have great doubt.”
Correction: An earlier version of this post misspelled Dave Meyer.