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Letter to the editor: Settling a losing lawsuit is good governance

Last week, the Encinitas City Council voted to settle a high-profile lawsuit on a 3-2 vote, with Councilmembers Tony Kranz, Lisa Shaffer and me voting to settle.

For me, this was the fiscally responsible decision, given that we were faced with a lawsuit by the Building Industry Association (BIA) that we could not win.

The principles that created the lawsuit were worthy. Before I was elected, a unanimous City Council changed rules at one emotion-filled council meeting to make it harder for high-density developers to build out-of-scale projects in Encinitas. But the rules were changed in ways that were inconsistent with state law. And the BIA sued the city.

Continuing to fight on principle is a waste of taxpayer money, especially because we can accomplish most of our goals by settling the lawsuit and rewriting our city’s ordinances.

Here are some of the reasons we couldn’t win:

• Policies have to be adopted by ordinance, not motion.

• It’s illegal to have size requirements that apply only to affordable units, but not to market rate units.

• We can’t apply rule changes retroactively.

• There is no legal defense for having a housing element that is 23 years old and legally noncompliant.

The biggest win for the city in the settlement is that we are still rounding down the number of homes allowed in calculating base density, not up, which will be codified in our new ordinance.

I know some are unhappy that we settled. Regrettably, there’s a vacuum of information right now, because we did not simultaneously release the city’s new density bonus and inclusionary ordinances, as I had hoped we would.

But hemorrhaging money on a losing lawsuit is not good governance, and it’s not leadership. It’s better to make internal changes, get out of court and regain control of our city. This is what we are doing.

Might we be sued again? Yes, but there’s always that risk — whether it’s the BIA or some other party. If the BIA wanted to continue fighting in court over rounding base density, they wouldn’t have settled.

The lesson I’ve learned is that whenever possible we need to make internal changes, both to official policies and established city cultural norms, before the council finds itself legislating technically complicated changes after many hours of emotional testimony.

Sometimes important decisions are worth risking a lawsuit. But if we can accomplish most of the same goals outside court, that’s certainly better.

Catherine S. Blakespear

— Catherine S. Blakespear is a member of the Encinitas City Council and is serving as Deputy Mayor. She can be reached at cblakespear@encinitasca.gov.


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