Save Desert Rose files for Supreme Court review

ENCINITAS — A citizens group opposed to the Desert Rose development in Olivenhain has filed its request for the state Supreme Court to rule the case, which the group says will have statewide implications.

The attorney for Save Desert Rose, Everett DeLano, filed the 58-page document with the state’s high court on Monday. In it, the citizens group argues the review is necessary to protect the ability of residents, or so-called “non experts,” to lobby cities to require developers to do more stringent environmental studies as part of their project approval.

“The Court of Appeal’s opinion makes it virtually impossible for non-experts to provide substantial evidence of a ‘fair argument,’” the petition states.

Bill Butler, Save Desert Rose’s co-founder, said that the lawsuit has risen beyond a local issue as several statewide building trade groups and legal organizations have urged the state court of appeal to record the decision, which would make it a legally binding precedent.

“Were this to happen, it is likely that cities and citizen groups throughout the state of California will be hampered in their ability to require or request EIR’s for proposed developments,” Butler said.

In a decision that stunned the citizens group, the Fourth District Court of Appeal in October unanimously reversed Superior Court Judge Judith Hayes’ 2014 decision to require the city and the project developer, Woodbridge Farms Estates, to conduct a more stringent environmental study of the 16-unit density bonus project.

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

The Desert Rose controversy has been the center of the battle between some Encinitas residents and the so-called “density bonus” developments, of which developers have built a proportionally large amount of such projects in Encinitas.

The residents have complained the projects alter the character of the community with oversized and super-dense units and cause other environmental woes, such as increased traffic and damage to wetlands in the case of Desert Rose.

After the city approved Desert Rose and the companion environmental report in 2013, Save Desert Rose filed a lawsuit to compel an environmental report.

According to the 37-page decision in October, the three-judge panel of Joan Irion, Terry O’Rourke and James A. McIntyre ruled that Save Desert Rose failed to prove that the project would cause the environmental woes they argued would occur if an environmental impact report — which is more stringent than a mitigated negative declaration — was not ordered.

The attorney representing the developer, Marco Gonzalez, said in November that he anticipated Save Desert Rose would request the Supreme Court review, but believed the case did not have far-reaching enough implications to warrant high court attention.

“We respect the rights of Save Desert Rose to file a request to have the appeal be reviewed by the Supreme Court, but we are extremely skeptical the court will see a policy issue of statewide concern in this suit,” Gonzalez said in a previous report. “They are grasping at straws at this point.”

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