Encinitas' housing policies draw legal scrutiny
Lyle Morans, November 18, 2014
city of Encinitas is defending itself against a lawsuit over
its updated policies for enforcing the states density
bonus law for developers, and could soon be facing further
legal action about the issue.
the lack of state approval of a housing element plan that
rezones sites to allow for increased housing development has
also drawn legal scrutiny from the building industry.
July, the Encinitas City Council amended its policies for
implementing the density bonus law, which allows developers
to build more units on a property than typically allowed by
agreeing to build at least one affordable unit.
more affordable units a developer proposes building, the larger
the density bonus, which is also increased when projects are
slated to include units for very low-income tenants.
councils action came in response to concerns from residents
that the projects approved under the law were producing few
affordable units and did not fit in with local neighborhoods
month, the Building Industry Association of San Diego sued
the city in Superior Court, alleging that its new policies
violate state law.
of the councils changes affect the calculation of a
propertys base density, a figure that helps determine
the number of additional units that a developer can build.
revision called for the city to round down base density calculations
that end up as a fractional unit, while another prevents floodplains
and other types of typically non-developable land from being
used in the calculation.
rounding change came despite the citys director of planning
and building, Jeff Murphy, stating in a March memo to the
council that for the past five years the city had been rounding
up density calculations with fractions to comply with an update
to the bonus law.
council is also now requiring that any affordable units in
a density bonus project must be at least 75 percent of the
average size of market-rate units or include 1,500 square
feet of living space, whichever is greater.
minimum of three bedrooms, two bathrooms and a two-car garage
is also mandated.
policy revisions were effective immediately and applied to
any projects not permitted or holding vested rights.
BIA believes Encinitas is making the changes to try to put
a halt to all density bonus projects in the city, said Michael
McSweeney, the BIAs senior public policy adviser.
intent of the state law is to provide incentives for affordable
housing to be produced, and the city is doing everything it
can to crush the incentives, McSweeney said. In
our view, that violates state law.
BIA wants the court to order the city to rescind its updated
density bonus policies and comply with state law.
city has decided to fight the suit and filed its initial response
the defenses in the response, the city alleges the BIA failed
to exhaust all administrative remedies before taking legal
action and that by its conduct it is barred from the relief
it seeks in its complaint.
Attorney Glenn Sabine did not respond to a request for comment.
Kristin Gaspar and City Councilwoman Teresa Barth, one of
the leaders of the push for the revised housing policies,
declined to comment due to the pending suit. Murphy also declined
to comment on the suit.
said the BIA is also concerned about what impact the citys
policy changes will have on the density bonus projects in
acknowledged that some of the eight active projects are likely
to be affected by the citys new rules, such as the rounding
down provision, which he said could potentially result in
the proposed developments seeing their plans reduced by one
or two units.
may soon be another party challenging the citys revised
density bonus policies.
Marco Gonzalez, representing the developer behind the 16-home
Desert Rose project, said he will likely take legal action
to clarify whether the project would be affected by the changes.
said the action could take the form of either filing a new
suit against the city or joining the BIAs lawsuit.
Farms Estates LLCs density bonus project calls for the
homes to built on land that currently features a horse boarding
and training facility.
said one of the constructed units would be affordable and
there would also be an in-lieu payment for another such unit.
project is already tied up in litigation.
neighborhood group called Save Desert Rose, represented by
attorney Everett DeLano, sued the city and developer over
the councils approval of the project in the Olivenhain
neighborhood in 2013.
Court Judge Judith Hayes ruled in Save Desert Roses
favor in April that the project's approval should be rescinded.
determined there was enough evidence that the project may
have an adverse effect on the environment such that the council
should have prepared an environmental impact report prior
to approval, rather than deciding one was not required.
filed a notice of appeal of Hayes decision on behalf
of Woodridge Farms Estates in late June, which stays Hayes
legal issues surrounding the citys density bonus law
policies come in the midst of the citys efforts to update
the housing element of its general plan.
communitys state-required housing element must have
zoning that allows for a community to meet its share of the
Regional Housing Needs Allocation, which is based on projected
population growth and other trends.
housing element also helps communities plan to accommodate
a variety of housing types and can reduce the time and cost
of housing production for developers, said Glen Campora, an
assistant deputy director with the state Department of Housing
and Community Development.
has not had a housing element approved by the state since
1992, a fact the BIA highlights in its lawsuit.
housing element that will cover the period through the end
of 2020 was supposed to have been approved last year.
BIA argues in its suit that the citys recent actions
are making it less likely to meet its regional housing allocation.
It is requesting the court order Encinitas to update its housing
element so that it complies with state law.
the Encinitas planning director, said the city plans to bring
an updated housing element to voters in 2016.
city does not have the zoning to meet the housing obligations
for lower-income levels and must find sites to accommodate
1,283 additional units.
city recently started a process to solicit public feedback
online that will help inform the plan; the website is Athomeinencinitas.info.
can highlight on a map which sites they would like to see
rezoned to allow for housing development and what type of
housing they would like to see there.
information will later be presented to the council and Planning
Commission to consider as the process moves forward.
are giving options to the community to help decide where and
how development will occur, said Murphy, who assumed
his position last year. We are pretty excited about
the approach we are taking and it is one I havent heard
of other jurisdictions using.
acknowledged that there are consequences to the city not having
an approved housing element, including missing out on hundreds
of thousands of dollars in grants from the San Diego Association
of Governments that could fund infrastructure improvements.
said Encinitas also has had units that were not planned for
in the last eight-year cycle added to its unit need this cycle.
is the only other jurisdiction that is part of SANDAGs
regional housing allocation group that lacks an approved housing
de Cordova, Carlsbads principal planner, said a draft
housing element has received positive reviews from the state
and he is hopeful a final plan will be approved in early 2015.
push to move forward with a new housing element in Encinitas
also comes not long after voters there approved Proposition
A in a special election last year.
growth control initiative limits city building heights to
the lower of two stories or 30 feet.
approved initiative also requires a public vote when a zoning
change will increase a propertys density or the intensity
of allowed development, such as providing for an increase
in the number of housing units that could be developed.
is why the housing element is going to the ballot.
said the city is considering allowing properties that have
their zoning changed as part of the housing plan update to
feature three-story structures if projects include a residential