Council closes key density bonus loopholes

ENCINITAS — The Encinitas City Council followed through on its pledge last week to close several key loopholes that have been popular among developers of so-called “density bonus” projects.

The council voted on a series of motions that memorialized its intent to stop the practices that they have said have contributed to the oversized, super-dense residential developments, which residents said clash with community character, create traffic problems and safety concerns for local communities.

State law allows for developers to build extra homes on land if one or more of the homes are earmarked for low-income residents.

Residents for years have criticized the city for liberally interpreting the state’s density-bonus code to allow developers to build far more units in such project than the law intended by allowing developers to exploit the loopholes.

Council voted unanimously to require developers to do the following things:


• Round down the number of units proposed on a site if the number of allowable units is a fraction

• Build affordable units within the projects to at least 75 percent of the size of their market-rate counterparts

• Provide evidence to demonstrate the need — financial, physical or otherwise — for a waiver for development requirements.


Council also voted 4-1 to start the process of adopting a change to its current density bonus ordinance that would define “environmental constraints” that developers would not be able to consider as “developable space” toward its calculation of the density of the project. Mayor Kristin Gaspar cast the lone dissenting vote.

The Council also voted unanimously — albeit hesitantly — to enact the changes immediately on projects that were not fully vested, a shift in its current interpretation, which had given developers those rights at the time they applied for the project.

The Council’s vote came after another packed crowd descended upon City Hall, many of whom were residents who lived in neighborhoods where density-bonus projects have been proposed.

They came armed with presentations, including 3-D modeling of how the homes would look next to the existing developments.

Unlike last week, however, several folks spoke either in favor of the density bonus developments or the concept, including a representative of the Building Industry Association and an attorney who represented the developers of an Olivenhain project called Desert Rose.

Marco Gonzalez, an environmental attorney who usually represents environmental activists through his Coast Law Group, said he believed developers just needed clarity and certainty from the city on its interpretation of state laws, which he said is not currently the case.

“We just need an answer that is clear,” he said. “Right now, it is completely unclear.”

Michael McSweeney, the BIA-San Diego’s senior public policy adviser, warned the city was likely headed toward litigation by developers.

“Why are you doing this?” McSweeney said. “I think there is a better way, rather than set something up that is going to end up in court, and that is the road you’re heading on.”

Gaspar, who appeared to be the most concerned about the city’s proposed interpretation, said she felt emboldened by the community’s overwhelming support for the changes.

“There is clearly a lot of community will, and I am willing to honor that community will until we are forced to make those changes,” Gaspar said.



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