Building Industry files lawsuit against Encinitas for recent
Aaron Burgin, October 14, 2014
ENCINITAS — The Building Industry Association of San Diego
has filed a lawsuit to invalidate the Encinitas City Councils
recent action to close several loopholes that have been popular
among developers of so-called density-bonus projects.
An email obtained by The Coast News indicates that City Attorney
Glenn Sabine informed the Council of the lawsuit Monday afternoon,
and advised them not to comment about it until they could
discuss the matter in closed session.
I have attached the lawsuit for your information. We
are currently evaluating the merits of the lawsuit and anticipate
bringing it to the Council in Closed Session as soon as possible,
Sabine wrote. In the meantime, please refrain from commenting
on the subject matter of the lawsuit pending the Closed Session.
The BIAs lawsuit argues that the Councils actions,
which they say were politically pressured, either violate
state law or make it infeasible for developers to build the
The Encinitas City Council, bowing to the pressure
of certain residents fundamentally opposed to the application
of the Density Bonus Law in their neighborhoods, has intentionally
and knowingly instructed City Staff to interpret
the Density Bonus Law in a manner contrary both to the letter
and spirit of the law, and contrary to its longstanding interpretations
thereof, the lawsuit states. The City Council
seeks to render the Density Bonus Law ineffective and unusable
in the City
The Council on July 16 voted on a series of motions that
memorialized its intent to stop the practices that they said
have led to the proliferation of the oversized, super-dense
residential developments citywide. Currently, eight of the
10 projects in the citys planning queue are density-bonus
The votes on the changes were nearly unanimous.
State law allows for developers to build extra homes on land
to offset the cost of building homes within the development
reserved for affordable housing, but residents said the city
has taken too liberal of an interpretation of the law, which
has allowed developers to build far too many homes than the
The changes included:
- Rounding down the number of units proposed on a site of
the number of allowable units is a fraction
- Building affordable units within the projects to be at
least 75 percent of the size of their market-rate counterparts,
or 1,500 square feet, whichever is greater
- Requiring developers to provide evidence to demonstrate
the need financial, physical or otherwise
for a waiver of development standards
- Starting the process of adopting a change to the city
code that would define environmental constraints
that developers would not be able to consider as developable
space toward its calculation of the projects density
- Enacting the changes immediately on projects that were
not fully vested. Previously, the Council policy gave developers
those rights at the time they applied for a project.
The Council recently deferred action on one of the proposed
changes regarding environmental constraints until it can be
discussed as part of an overhaul of its density-bonus policies.
The BIA argues in its lawsuit that the citys actions
would further damage the citys ability to provide state-mandated
affordable housing allocations. As part of the lawsuit, it
is requesting the court order the city to update its housing
element, which has not been updated since 1992.
We are very concerned about the city and its effort
to circumvent state law, which allows for the creation of
more affordable housing, BIA Vice President Matt Adams
In regard to the community sentiment that developers have
exploited state law to build oversized developments, Adams
said the argument has a fatal flaw.
How can you exploit a state law? Adams said.
If you build a certain amount of affordable housing,
you are granted increased density, you cant exploit
it if you follow the rules. We are simply saying follow the
rules, and the city doesnt want to follow the rules.
While city officials are remaining silent on the lawsuit,
at least one attorney involved with a lawsuit against one
of the density-bonus projects said the lawsuit is distracting
from the most pressing issue the citys need to
update its housing element ordinance.
Everett Delano, who represents the group Save Desert Rose
in their successful lawsuit against the proposed Olivenhain
development, said he believes the Councils actions in
July memorialized discretion they had in their city laws all
The BIA doesnt like that the Council isnt
inclined to say, Whatever you want we will give you,
as previous councils did, Delano said. They are
looking at these things with a harder lens, and the BIA doesnt
I think the city needs to revise its ordinance to address
the density-bonus law, and I think the city has recognized
that need, Delano said.