ENCINITAS — A local effort to give residents control over land use means well, but would ultimately hurt the city, according to a new report issued by the law firm Rutan and Tucker, LLP.
The report, which was ordered by Council last month, states that the “Right to Vote” initiative would be costly and make the city vulnerable to lawsuits. But backers of the initiative argue those consequences simply won’t happen. Moreover, they say Rutan and Tucker is biased in favor of development interests.
Council will address the initiative during a special meeting March 12. At that meeting, Council has the option of adopting the initiative outright or within 10 days after that. If Council decides not to approve it, the initiative will be placed on the ballot for a special election, likely to take place June 4. The election would cost the city an estimated $350,000 to $400,000, according to city officials.
Under the initiative, increasing density or building heights beyond 30 feet would require a majority vote of the public. Additionally, changing the zoning type of a parcel in some circumstances would need voter approval.
Many zoning changes are already subject to a public vote. But currently, Council can raise density limits and change the zoning type of a parcel with a four-out-of-five council member vote — a power that would be eliminated under the initiative.
Rutan and Tucker’s report maintains that the city will have a difficult time complying with housing requirements if major zoning decisions are placed in the hands of voters. Right now, Encinitas is updating its blueprint for housing in the city. Part of that process includes planning for where 1,300 state-mandated housing units could be built in the city. To accommodate these units, parcels might have to be rezoned to allow for greater density. And if the initiative becomes law, this type of rezoning would trigger a public vote, according to the report.
Should voters reject the state-mandated housing units, developers could sue the city for being out of compliance with state law. Further, the city could cede its authority over land use, the report states.
Bruce Ehlers, the initiative’s spokesman and a former city planning commissioner, isn’t buying it.
Ehlers challenged the assertion that the initiative would make the city susceptible to lawsuits and more likely to give up land control. First, he said, the initiative isn’t “anti-growth,” it’s only for development that citizens can live with. And should the city face penalties for not meeting state-housing requirements, that would be something voters would take into account when deciding whether to OK projects, he said.
He argued the city could still be sued under the current rules for not conforming to housing that’s mandated by the state.
“If you replace the words ‘right to vote initiative’ with ‘City Council’ in the sections that cover state (housing) requirements in the report, the report would still be the same,” Ehlers said.
“The initiative is only giving voters the final say,” he added.
He said Rutan and Tucker has a history of representing and supporting developers.
“The report is from the lens of developers,” Ehlers said. “I don’t buy their ‘the sky is falling’ interpretation.”
But Joel Kuperberg, an attorney with Orange County-based Rutan and Tucker, said the report was approached “without any political or ideological bias.” He noted the more than 40 lawyers at the firm have represented cities, landowners, developers and environmental groups over the years, as well as analyzed legislation.
Kuperberg said that any law firm versed in California statutes would arrive at the same conclusions as those in the report.
“In light of statutory law, it’s clear,” Kuperberg said, adding that the specific statutes the law firm’s reasoning is based on are listed throughout the report.
The report delves into additional concerns.
According to the report, the initiative could violate the state’s density-bonus law, which lets developers increase density on lots in return for building low-income housing units. Again, litigation is possible for not following the law.
Also, the initiative could increase the cost of mailing notices for public hearings of development projects, the report states. Currently, a project affecting more than 1,000 people can provide notice of a public hearing in a newspaper. But the initiative doesn’t list that option, meaning public notices would have to be mailed to anyone affected by the project — a much larger cost shouldered by the developer or city, depending on the project.
Another notable portion of the report: the California Coastal Commission, the state agency that oversees coastal access and safety, would have to certify the initiative. Until then, the initiative wouldn’t take effect for the parts of the city near the coast.
Council also asked the law firm to address the impact on business.
According to the report, this area too would suffer, “because there may be fewer business and employment sources to relocate to in Encinitas.”
In response, Ehlers said that he heard a reoccurring theme while walking through neighborhoods to collect signatures for the initiative.
“Most of the people I spoke with mentioned community character,” Ehlers said.
“Community character is what attracts businesses and people to Encinitas; the initiative would preserve that,” he added.