Encinitas to defend ‘density bonus’ lawsuit

The city of Encinitas will fight a lawsuit challenging its ‘density bonus’ development rules.

Last week, the Encinitas City Council in closed session voted to defend the lawsuit, which David Meyer of Encinitas-based DCM Properties filed on Jan. 25. The litigation contends the city’s density bonus ordinance is too restrictive and runs afoul of state law.

California’s density bonus law lets developers construct more housing than typically allowed under city regulations, in exchange for at least one home being reserved for low-income individuals. The Encinitas council has argued the law amounts to large, dense developments that are out of character with neighborhoods, while the lawsuit maintains that density bonus law is critical for affordable housing.

Meyer’s lawsuit states the city is violating California law by “rounding down” a calculation that determines how many homes are allowed in a density bonus development. The legal action seeks to force the city to “round up” fractional units when calculating how many homes are allowed on a parcel, yielding at least one additional market rate house in a density bonus project when compared to rounding down.

This is the second time in recent years that Encinitas has been hit with a lawsuit over its density bonus rules. In October, the council settled a Building Industry Association of San Diego lawsuit, and as a result, the city rescinded many of its density bonus policies, although it retained the ability to round down.

Barbara Kautz, the outside attorney the city hired to handle its density bonus ordinance, told the council in October that rounding down is legally defensible under state law, because other cities follow that approach.

In her weekly newsletter, Deputy Mayor Lisa Shaffer declined to comment on the matter because it’s under litigation.

“I wish I could go into an explanation of the city’s position and Mr. Meyer’s allegations, but since we are in litigation, that would be irresponsible,” she wrote.

Mayor Kristin Gaspar recused herself from the closed session agenda item after receiving verbal advice from the Fair Political Practices Commission regarding a potential conflict of interest between her and Meyer’s attorney, according to Shaffer.