Who’s Being Sued? The truth about Prop. A

August 28, 2020

Are you confused about what to believe when it comes to rumors about Prop. A and a lawsuit? If so, you’re not alone. The truth doesn’t lie in a simple false accusation, as in “my city sued me.” It’s a complex saga with a few surprises, just like real life.

But when you know what’s actually happening, you won’t be misled by simplistic slogans like this one:

It’s not surprising that opponents are trying to create a negative controversy over this false accusation. The city’s mayoral and city council races this year are embroiled in allegations over housing and the citizens’ right to vote on housing. Growth has been the single most controversial issue in Encinitas for years.

Your current elected leadership is navigating a difficult morass of lawsuits and state regulatory requirements, with a sincere desire to do what’s right by the community.

We don’t want out-of-scale development, and we don’t want to silence our residents. 

We’re working to protect what’s special about Encinitas, allow the opportunity for affordable housing and get right with the law. It’s the ethical thing to do.

Here is where things stand: the city has named the State of California in a legal action to determine the boundaries of Prop. A’s applicability, and a resident group called “Preserve Prop. A” (PPA) has filed a motion to intervene in the litigation.  For the second time.

1) How did we get here?

In most cities, the elected City Council approves housing plans as part of their legislative function. In Encinitas, Prop. A, passed in 2013, requires an affirmative vote of the residents to approve a housing plan. (I was first elected in 2014).

In 2016, the city presented a housing plan to voters that would have put us in compliance with state housing laws. When the voters rejected that plan, the city was sued for being out of compliance with state housing laws. Before making any final ruling, the court wanted to see what the voters would decide on a second housing plan put before them in 2018.

When the majority of voters rejected that 2018 housing plan, the court ordered the city to suspend the Prop. A vote requirement and adopt a housing plan that was acceptable to the state.

2) Preserve Prop. A tries to join the litigation

In 2019, the group called Preserve Prop. A formed to attempt to intervene in the lawsuit.

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

3) The judge denies Preserve Prop. A’s intervention request

The court rejected their effort as untimely, as shown in the document below. The judge stated: “PPA (Preserve Prop. A) and its counsel have been aware of this litigation since its inception. They elected to sit on the sidelines and watch as the lawsuit has unfolded. Now, after the merits of the lawsuit have been fully adjudicated, PPA wants to jump into the fray and re-litigate the case all over again.”

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

4) Encinitas agrees to second lawsuit clarifying the limits of Prop. A

When the court ordered the city to suspend the vote requirement and adopt a housing plan within 120 days, the judge said that the city needed the state to sign off on the plan. In order for the state to agree to the plan, the state required that the city include a promise that the city would pursue city-initiated litigation to determine the limits of Prop. A’s validity.

The state had great leverage over Encinitas because the city had not had a state-approved housing plan for the previous 27 years, two plans had been rejected at the ballot box and the court had mandated compliance. The city was essentially in the penalty box with no room to move.

Below are two excerpts from the fifth cycle housing element outlining actions that the state required of Encinitas.

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

5) The city names Preserve Prop. A in its court-mandated filing

The city, in good faith, believed that Preserve Prop. A wanted to participate in this compulsory litigation. The city believed this because Preserve Prop. A had requested to intervene in the previous litigation (see the document in point 2 above) and because informal conversations had indicated as much.

When the city filed the court-ordered Motion for Declaratory Relief (shown below), Preserve Prop. A was named based on the interest they had previously expressed.

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

The above document is the single event in this saga that the “suing our residents” allegation comes from, and it relies on the notion that you’ll ignore everything that’s happened before and since, including the fact that Preserve Prop A was never served with this lawsuit.

6) Preserve Prop. A litigation never started, so state threatens Encinitas

The city filed the document shown above, but it was never served on the group, i.e. the litigating never started. We did not serve the document because Preserve Prop. A decided they actually didn’t want to be involved. This blindsided the city, as we thought they wanted to participate.

The litigation was so far from starting that the state actually sent Encinitas a threatening letter saying that if we didn’t prosecute a lawsuit as promised in Program 3C, they would revoke our state housing compliance, as seen below. 

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

7) Encinitas dismisses Preserve Prop. A and names the state instead

In light of Preserve Prop. A’s about-face and accusation of “suing our residents” and the state’s letter, the city dismissed Preserve Prop. A from the lawsuit, as seen below…

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

…and on the same day, the city named the State of California (California Department of Housing and Community Development), which had ordered the lawsuit in the first place, as seen below.

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

8) But hold on! Now Preserve Prop. A wants back in the game!

In a bizarre twist, six months after they were dismissed, Preserve Prop. A filed a new motion to “intervene,” essentially saying they again want to be involved (see below). 

(Click on the picture to enlarge it, or click here to see a PDF of the entire document.)

As you can see from this document filed by Preserve Prop. A, they now want to position themselves as co-defendants with the state – in other words, asking to re-assume the role they so strenuously objected to previously.

It’s head-scratching time. 

9) Meanwhile, time and money’s a-wastin’ in this bizarre saga

The city is trying its best to move forward and resolve this. 

Let’s get all the arguments out there and put this question to rest. 

The city’s interest is in complying with state laws, providing more affordable housing, protecting citizens’ right to vote to the extent it isn’t preempted by state law and ending costly housing lawsuits.

10) So now you know the actual complicated, but true, story about Prop. A and the lawsuits.

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