In a Feb. 4 letter to the city of Encinitas, state housing official Zachary Olmstead said the city needed to ”amend or invalidate” a 2013 ordinance approved by voters that said developers had to get voters’ blessing if they wanted to increase the density of their projects or make zoning changes. The letter noted that this law and other city actions had the effect of blocking Encinitas from meeting state requirements that it add 1,141 affordable units. The city of 63,000 has few such units now.

While the Encinitas City Council once seemed as strongly anti-growth as the public, state threats under the Jerry Brown administration led the council in 2016 and 2018 to seek voters’ approval of what’s known as a Housing Element plan, failing both times. The plan is a formal document submitted to the state that outlines what projects will be built so that the city meets its commitment to “accommodate the housing needs of Californians of all economic levels.”

Like Huntington Beach, Encinitas could face lawsuit

Encinitas is the only city in San Diego County without a similar state-approved plan. It is among the richest cities in the country. As of the latest Zillow data, the median average home price is $1.05 million, and the latest RentCafe data puts the average monthly rent at $2,056.

While the 2013 city law targeted by the state has already been suspended until 2021 by a Superior Court judge as being pre-empted by state law, that wasn’t viewed as going far enough by state officials. Olmstead’s letter cited the cumulative effect of a “complex set of regulations” that make it impossible for new projects that would help the city comply with state requirements.

If Encinitas officials don’t change course, the letter warned that state grants might be withheld, including for transportation projects funded by the Legislature’s 2017 increase in state vehicle taxes – and that the Newsom administration would ask Attorney General Xavier Becerra to sue the city for defying state law.

In a case involving the same issues, the state and the city of Huntington Beach filed lawsuits against each other last month in Orange County over whether Huntington Beach is breaking state housing laws. Becerra says 2017 legislation passed in Sacramento clearly empowers his office to sue to enforce plainly written state mandates. Huntington Beach City Attorney Michael Gates, however, says as a charter city – one with its own voter-approved de facto constitution – Huntington Beach has the authority to reject some state edicts that infringe on the city’s right to self-govern its “municipal affairs.”

Can charter cities claim exemption from mandates?

A League of California Cities primer on the rights of charter cities offers ammunition for Huntington Beach’s claim. It notes that with “some exceptions,” charter cities control land-use and zoning decisions. But a 1975 Loyola University of Los Angeles Law Review analysis cited by the league said ambiguous language in state law left it unclear precisely when charter city ordinances took precedent on land-use issues.

Encinitas is a general law city not eligible for charter city protections from some types of state interference. But if Encinitas officials proposed and city voters approved a charter city amendment in a special election, Encinitas could become a charter city within months.

Last year, after disputes with the state, officials in Menlo Park in Silicon Valley considered a quick push for charter city status before putting the issue on hold for the time being.

This year, a North San Diego County school district roiled some Californians with concerns that its yoga program was too religious. As similar programs have spread around the country, yoga’s Hindu origins have raised questions about its compatibility with public school instruction.

But the nine schools in the Encinitas district had carried on the practice for years without much incident. “Encinitas introduced yoga as a pilot program to one of its nine elementary schools in 2011, resulting in just 40 to 45 of the 5,000 students being pulled out of the class by their parents,” Jurist reported. “Yoga is taught in many other schools in the U.S., but the Encinitas Union School District is reportedly the first of the school districts to offer classes on a full-time basis.”

As the Associated Press noted, the courses received three years worth of funding through the K.P. Jois Foundation, “a nonprofit group that promotes Ashtanga yoga” and “provides twice-weekly, 30-minute classes” at Encinitas schools.

A shaky case

Although both traditionally-minded Christians and strict secularists alike have been wary, the courts didn’t put much stock in plaintiff’s fears that yoga plunged students into inappropriate spiritual situations. Stephen Sedlock “said he became worried after reading an article that suggested yoga may not be safe for children,” according to NBC Los Angeles. “His wife, Jennifer, said the yoga program went against the first and second commandment of the Bible, which dictate ‘I am the Lord your God,’ and ‘you shall have no other gods before me.'”

The three-judge panel on California’s 4th District Court of Appeal disagreed. Located in San Diego, the panel unanimously denied that the state constitution’s religious freedom clause — seen as broader than the U.S. Constitution’s — barred instruction in yoga- and yoga-like poses.

“The record in this case contains abundant evidence that contemporary yoga is commonly practiced in the United States for reasons that are entirely distinct from religious ideology,” the panel ruled.

Threading the needle

In its defense, Encinitas was helped by the courses’ focus on physicality alone — and their strictly optional nature. But court records showed that the school district labored carefully in order to craft an approach to yoga that satisfied standards at the level of the constitutional, the state school system and parents themselves:

“The district hired its own expert to write a curriculum that conformed to California’s physical education standards. The district’s program focused on yoga poses, breathing, and relaxation, as well as helping instill such character traits as empathy and respect.

“After some initial parent complaints that the program was religious, the district made changes, such as removing Sanskrit and images of India, and renaming some positions (such as changing the ‘lotus’ position to ‘criss-cross applesauce.’)”

But in 2013, the Sedlocks decided to sue.

Although the language of California’s religious freedom protection differs from that in the federal Bill of Rights, state constitutional law has looked to Supreme Court jurisprudence in determining the merit of claims bearing on relevant claims. As a result, the court in the Sedlocks’ case looked to the so-called Lemon test, named for a landmark Supreme Court ruling handed down in 1971.

The Lemon test set up a three-part standard to give a contested program legitimacy. Then-Chief Justice Warren Burger formulated the standard:

“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

The use of the Lemon test has not always been consistent, and the court has come under fire from analysts who have described it as an exercise in judicial activism. But in the Encinitas case, it contributed to a ruling that will likely hold. The Sedlocks were reportedly considering their options as to how to proceed, but no announcement of an appeal has been made.

How much can state and federal law dictate local housing policy? That confrontation has turned over headlines in Encinitas, where residents are debating which policy should be adopted by them at the ballot box in 2016.

According to KPBS, “Under California law, every city has to have a housing element in its general plan.” Cities without such plans could be punished with “the loss of millions of dollars in government funding for things like road improvements, and possible lawsuits for not providing affordable housing.”

According to the city’s website, it has been conducting e-Town Halls “to involve the public and get valuable input that will help the City as it crafts the Housing Plan.”

The city’s specific e-Town Hall website asks, “In 2016, there will be a ballot measure to adopt a plan for future housing in Encinitas…. What do you want this plan to look like?” And it urges that the deadline for participation is Dec. 5 at 5 p.m.

Bringing Encinitas’ housing plan into compliance would mean increasing the population density of land to allow 1,300 mandated low-and-moderate income housing units for about 3,900 people, at three persons per household average.

Comparison

Below is a table comparing Encinitas and the entire state of California as to affordability of rental housing according to U.S. Census data.

The table shows the percentage of gross income that is spent on rent.  The lower the percentage of gross income spent on rent, the more affordable the rental housing is.

It turns out Encinitas actually has a greater overall percentage of affordable rental housing than California. More, Encinitas has a much greater percentage of the cheapest rental housing, where renters pay only 15 to 24.9 percent of their income on rent.

Compared with the rest of California, Encinitas can hardly be called a city that does not have affordable rental housing.

                     Gross Rent as a Percentage of Household Income

Encinitas one of 41 non-compliant cities

In California, 15.3 percent of its residents are below the poverty level. But Encinitas is better than that, at 9 percent. 

Encinitas is one of about 41 cities and counties that are not compliant with filing a Housing Element to their General Plan, as of Nov. 20.  Among the other cities that are non-compliant are Bradbury and Rolling Hills in Los Angeles County, Fullerton in Orange County, Palm Springs in Riverside County, Upland in San Bernardino County, San Luis Obispo in San Luis Obispo County and Davis in Yolo County.

Out of 538 county and city jurisdictions, 8 percent are non-compliant in filing an adopted housing plan.

However, after years of trying to obtain consensus of its citizenry on the state’s mandated housing plan, Encinitas still has not adopted an affordable housing plan since 1990. The Los Angeles Times reported that year:

“In response to warnings issued in September that it was not providing adequate housing opportunities for such groups as homeless residents and migrant farm workers, the city of Encinitas on Tuesday sent a revised draft of its general plan for review by state housing officials in Sacramento.

“Craig Jones, senior planner for the city of Encinitas, said the 30-page housing portion of the city’s general plan has been expanded to more than 80 pages and includes details on dozens of housing programs available to the city’s homeless population — including at least three such programs that directly address the needs of migrant laborers.”

Of course, even more migrant laborers have come to California in the last 24 years. And President Obama’s controversial November amnesty for about 5 million migrants also will increase housing pressures.

Affordable ownership 

Encinitas comprises 13,300 acres, of which 1,123 acres remain vacant and undeveloped, reflecting 8.4 percent of the total land area. So it can’t be said Encinitas is a built-out city that has no buildable land for ownership housing. In contrast, Encinitas only has seven acres of vacant land left that can generate new employment.

Ed Ring, director of the California Policy Center, has pointed out it is the effectively zero-interest rate policy set by the U.S. Federal Reserve Board, coupled with state open space programs limiting development, that have resulted in pricing young homebuyers out of the ownership housing market not just in Encinitas, but throughout the state.

But California’s statewide land policies are unlikely to change. And Fed policies are influenced by national and global factors far more than the concerns of residents of a small city in California.

KPBS reported, “City Manager Gus Vina said past attempts were unsuccessful because of residents’ anxiety about change, and concerns about lack of community input.”

Vina himself said, “You know, bottom line is Encinitas is behind, because we don’t have an approved housing element. We’re the only city in the San Diego region that doesn’t have one.”

The 2016 vote by Encinitas citizens will determine how much they want to continue local control and possibly forego federal and state funding for projects their taxes paid for, or how much they want to buckle to state and federal control.