Encinitas Fears Cityhood Challenge : Incorporation Foes Ask Court to Overturn Election Result

While residents of the newly formed City of Encinitas watch helplessly from the sidelines, a state appellate court this week is considering a case that threatens to dash the city’s incorporation, approved overwhelmingly by voters June 3.

A decision by the 4th District Court of Appeal, which heard arguments in the case Monday, is expected within two weeks. The court’s ruling will either invalidate the cityhood victory or pave the way for the official establishment of home rule in Encinitas on Oct. 1.

At issue is an unusual lawsuit brought by a group of anti-incorporation activists known as Citizens for Informed Choice on San Dieguito (CICSD). Attorneys for the group, made up primarily of large landowners and businessmen, initially sought in Superior Court to block the June incorporation vote.

Now they are attempting to persuade the appeal court to overturn the cityhood victory, arguing that the Local Agency Formation Commission (LAFCO) acted improperly when it approved the incorporation ballot measure.

Proposition K merged the communities of Cardiff, Olivenhain, Encinitas and Leucadia into a single city of about 44,000. It was approved by 69% of the voters after a hard-fought campaign--and two previous incorporation attempts in the past 12 years.

CICSD attorneys argue that LAFCO, a county agency that must approve all incorporation bids, failed to comply with certain legal procedures before qualifying the cityhood question for a test at the polls. That failure, they say, taints the vote.

Specifically, CICSD maintains that LAFCO should have prepared an environmental impact report on the effect the new city would have on the county and on neighboring communities. The report, they say, is required by the California Environmental Quality Act and is necessary to bring the full range of potential consequences of cityhood before voters so they may make an informed choice.

In addition, CICSD attorneys argue that several “sphere of influence” studies should have been completed before Encinitas and its neighbors were permitted to establish a local government. Sphere of influence studies identify land that may logically be annexed by a municipality at a future date.

The lawsuit names LAFCO, San Diego County and the Encinitas Fire Protection District--which sponsored the incorporation measure--as defendants.

On Monday, each side in the dispute summarized its arguments in 30-minute presentations and fielded questions from the appellate court’s three justices: Presiding Justice Daniel J. Kremer and Justices Edward T. Butler and Gerald J. Lewis.

Butler’s queries addressed the issue that has newly elected leaders in Encinitas on the edge of their seats: the propriety of scrapping the incorporation vote after it won such strong backing at the polls.

“How would you suggest I tell the several thousand people that the vote they cast in favor of incorporation is to be set aside and voided?” Butler asked CICSD attorney David Mulliken.

“Is it to be said that LAFCO’s (alleged errors) are of such magnitude, of such importance to the public weal, that we set aside this vote?”

Mulliken was quick with a reply: “With all due respect to the right of voters to determine their own fate, you cannot meaningfully exercise that right until LAFCO has properly done its job.”

Once LAFCO has met its duty, “then voters can vote on (incorporation) in November of 1986, June of 1987 . . . or any time they want,” Mulliken said.

But both William Ross, an attorney for the Encinitas Fire Protection District, and the deputy county counsel representing LAFCO countered that the agency had followed all the proper procedures in giving the North County incorporation drive the go-ahead.

Ross said state law requires an environmental impact report only if a project is expected to have an adverse effect on the surrounding area. In this case, such a report would be a futile exercise containing “nothing but generalities and speculation” because LAFCO “could not know what the new City Council would do once elected,” Ross said.

As for the claim regarding sphere of influence studies, LAFCO did not prepare the studies because they covered “irrelevant” districts--areas that either do not border the City of Encinitas or would not be influenced by the area’s incorporation, according to Deputy County Counsel Greer Knopf.

In addition, Knopf said that CICSD never raised the sphere of influence concern at administrative hearings on incorporation, thereby denying LAFCO the chance to address the issue at that time.