City approves density bonus ordinance

ENCINITAS — Resigned to the inevitability of the passage of a state density bonus bill, Encinitas officials recently approved the first reading of a proposed revision to its ordinance that governs so-called density bonus projects.

The revised ordinance was part of a settlement between the city and a developer that sued the city over its interpretation of the law that governs density bonus, which is a state law that 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 developments have proven to be controversial in Encinitas, where developers have built a proportionally large amount of density bonus projects in Encinitas. This has caused a number of residents to complain that the city was too lax with its approval of projects, which they said altered the character of the community with oversized and super-dense units.

But Gov. Jerry Brown is poised to adopt an assembly bill that will further reduce local control over density bonus projects, including one key area that the city fought to control- rounding up or down.

City officials in July 2014 approved several policies that were aimed at closing several loopholes that have been popular among density bonus developers, including how the city calculates the base density of a project if the number of units was a fraction. City officials traditionally rounded down, but developers sued arguing that state law required them to round up.

The city settled one lawsuit with the Building Industry Association of San Diego, which challenged the legality of the policy changes, only to be hit with another lawsuit by developer David C. Meyer of DCM Properties. Meyer argued that a vestige of the settlement arrangement — the city would calculate base density by rounding own the number of base units if the number were a fraction — violated state law.

Encinitas and Meyer reached a settlement that calls for the city to round up in the case of fractional base density, which prompted a local group opposed to the interpretation to file its own lawsuit and threaten additional litigation if the city adopted the settlement agreement.

But the imminent state law, AB 2501, eliminates any ambiguity associated with the “rounding up” issue and mandates that all jurisdictions round up in the event of fractional units.

“It goes further to say that we should have been doing this all along,” said Councilman Tony Kranz, who made the motion to approve the updated ordinance at the Sept. 14 council meeting.

Mayor Kristin Gaspar said that residents should take solace in the fact that the city ‘fought the good fight’ against the policy, going as far as empowering Deputy Mayor Catherine Blakespear to go to Sacramento to speak against the proposed law.

But, Gaspar said, the city can ill afford to continue its fight, which has cost the city more than $700,000 in legal fees.

The city was originally going to vote on the changes in August, but delayed the vote after a group called the Encinitas Residents Alliance threatened to sue the ctiy, alleging that the proposed change violates the voter approved Propostion A as well as the California Enviornmental Quality Act.

The group, spearheaded by former Planning Commissioner Bruce Ehlers, has argued that the change to rounding up is tantamount to a city-wide zone change that should be voted on by the people under Proposition A, which was approved in 2013.

It also argues that the increased density citywide would create a significant environmental impact that under state environmental laws should trigger a stringent study of its effects.

Encinitas Residents Alliance sued the city in July challenging its approval of a Leucadia project called Hymettus Estates, as well as challenging the legality of the city’s settlement with the Building Industry Association that preceded the Hymettus approval.


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