Judge rules Prop. A proponents can't intervene in two housing lawsuits
By Barbara Henry, March 18, 2019

A citizens' group of growth-control advocates will not be permitted to intervene in two housing-related lawsuits against the city of Encinitas that were filed two years ago, a Superior Court judge has ruled.

Allowing the Preserve Proposition A group to have a voice in the court process now as an official "intervener" would unnecessarily delay litigation that finally is headed toward resolution, Judge Robert Dahlquist wrote Friday as he rejected the group's recent request to participate.

Group members and their attorney could have made their request back when the first lawsuit was filed, but "they elected to sit on the sidelines and watch as the lawsuit has unfolded," he wrote.

"Now, after the merits of the lawsuit have been fully adjudicated, (the group) wants to jump into the fray and re-litigate the case all over again. There is no good reason for the court to allow this to happen, and there are very compelling reasons not to allow it to happen."

One key compelling reason, the judge wrote, is that Encinitas has been out of compliance for years with state housing law and needs to resolve this situation immediately.

Encinitas is the only city in San Diego County that lacks a valid Housing Element, a state-mandated planning document that spells out how a city proposes to handle its future growth, particularly the housing needs of low-income people.

The city is currently being sued by the both the Building Industry Association of San Diego and San Diego Tenants United over its lack of compliance with state law.

In order to meet the state planning requirement, Encinitas must agree to designate a group of properties as spots for additional housing and increase those properties' zoning so that denser projects, particularly lower-cost, multi-family apartment complexes can be built. Building higher-density housing in town has been very controversial and that's been a problem because the city has to obtain voter approval for the proposed zoning changes.

Because of the provisions of the Prop. A growth-control measure, Encinitas needs voter approval for any proposed increases in housing density or building height. Voters have turned down two of the city's proposed housing plans, including the Measure U plan which was rejected in November.

After that plan failed to win voter approval, the judge overseeing the two court cases ordered the city to submit a housing plan to the state within 120 days and said Encinitas would be allowed to temporarily exempt itself from the voter requirements of Prop. A to get its planning project done.

It was this court directive that led the Prop. A group to file its intervener request, Everett DeLano, the group's attorney, said Monday. Prior to that point, Prop. A supporters believed the city was following Prop. A's voter approval requirements.

"Up until that moment, they were doing their duty," he said, calling the new directive a "sea change."

DeLano added that he found Dahlquist's decision to reject Preserve Proposition A's new intervener request "interesting" reading, saying the judge essentially told his group that it shouldn't intervene now, but could file its own lawsuit later if the city's housing plan isn't acceptable.

"Essentially, the judge is saying you have your rights .... bring a case against the city," he said, adding that group members haven't yet decided what steps they'll take next.

The latest housing plan proposal that's working its way through the review process is a modified version of the Measure U plan that voters rejected in November. The new plan contains slightly higher building height limits and some changes to the way building density is calculated. The City Council gave its initial stamp of approval to this plan earlier this month, and it is scheduled to be sent to the state for its review before an April 11, court-ordered deadline.

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