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Council delays density bonus decision

ENCINITAS — Encinitas officials delayed a proposed revision to its ordinance that governs so-called density bonus projects, opting to wait until Gov. Jerry Brown acts on a state bill related to the action.

The City Council unanimously supported the delay after a group of community activists that is already suing the city on one density bonus project threatened additional litigation if the city adopted the ordinance.

Encinitas, according to an earlier Coast News report, has spent more than $700,000 fighting housing-related lawsuits, and city officials said taking action that would bring about more legal action is an unsustainable path.

“We’ve shelled out a lot of money…This is something I don’t wish for our community,” Mayor Kristin Gaspar said. “This has the potential to keep costing a lot of money, and because we have so many competing priorities, it is tough to keep going down this road.”

The Encinitas Residents Alliance alleges that the proposed change, which is part of a lawsuit settlement between the city and a density-bonus developer that the council will consider at Wednesday’s meeting, violates the voter approved Proposition A as well as the California Environmental Quality Act. 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 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 developers have also sued the city, in particular after a July 2014 decision to approve several policies aimed at closing a number of loopholes that have been popular among density bonus developers.

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 have reached a settlement that calls for the city to round up in the case of fractional base density, which the city is scheduled to approve at the Wednesday council meeting.

Encinitas officials said they took the action as the result of an imminent state law that will, among other things, make rounding up the state’s overriding policy. The Assembly in May passed it out of its hall with a 45-7 vote and Gov. Jerry Brown, in his May revised budget, specifically called out the bill as an important piece of the state’s ability to increase its housing stock to meet increasing demands.

Encinitas has been in the minority in the argument for increased local control for density bonus projects, as critics have argued that local officials have used their policy interpretations to stifle development, creating a statewide housing crisis.

But Brown has yet to the sign the bill into law, and Councilman Tony Kranz, who made the motion to delay the vote, said it was prudent to wait until the law passes so that its decision would be aligned with the state.

The Encinitas Residents Alliance has argued that the change to rounding up is tantamount to a citywide zone change that should be voted on by the people under Proposition A, which was approved in 2013.

The citizens group, spearheaded by former Planning Commissioner Bruce Ehlers, also argued that the increased density citywide would create a significant environmental impact that under state environmental laws should trigger a stringent study of its effects.

“By increasing the number of houses permitted under the ‘base density’ calculation the City is attempting to increase density without the public vote required by “Prop A,” passed in June 2013 and now part of the city’s Municipal Code,” the group said in a news release. “The City violates CEQA law when it claims that an effective citywide upzone would not have a significant environmental impact.”

Encinitas Residents Alliance recently sued the city 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.

The BIA lawsuit settlement preserved the city’s ability to “round down” on density bonus projects with the exception of six projects that were deemed already in the planning pipeline, which included Hymettus Estates.

Activists argue that the settlement allowed for a much more densely packed project to be approved that would have otherwise would have been allowed under the former city policy.

Now, they say, the city’s current settlement with Meyer will open the door for similar projects elsewhere.

“The Council’s proposed change would modify all future density bonus calculations to match its special handling of six pipeline density bonus plans that were specially treated as a result of the City Council’s settlement of a Building Industry Association (BIA) of San Diego lawsuit,” the alliance stated in the news release. “In both cases the settlements violate the California State Constitution that does not permit the delegation of the Council’s land use authority to a private party. This is the second time the City is being accused of unlawfully ceding its authority to a non-governmental entity; in this case, to DCM Properties, by agreeing to change zoning as dictated by this private party.”

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