Threat of litigation delays vote on Encinitas ‘density bonus’ ordinance

The Encinitas City Council was poised Aug. 26 to vote on a “density bonus” ordinance. However, the council postponed the matter after receiving a threat of litigation.

California’s density bonus law lets developers bypass local zoning and construct more housing than normally allowed. In exchange, at least one of the homes must be reserved for low-income individuals.

“Because of this threat of litigation, I’m recommending we postpone,” said Mayor Kristin Gaspar at the Aug. 26 council meeting. Gaspar said the litigation threat was written and verbal, but she didn’t go into more detail.

The council on Sept. 9 will discuss the potential lawsuit in closed session and then take action in open session on the ordinance. Open session starts at 6 p.m. at City Hall, 505 S. Vulcan Ave.

Resident David C. Meyer of DCM Properties sent a letter to the city Aug. 26 stating that the city’s proposed ordinance could land the city in court.

“In an effort to avoid likely litigation over the subject density bonus ordinance, we recommend that the City Council revise this draft ordinance to closely comply with the written state law, its spirit and intent, in cooperation with a working group of affordable housing advocates and the building industry,” Meyer wrote in the letter.

When asked after the meeting if Meyer’s letter is the reason the city is delaying consideration of the density bonus ordinance, Gaspar referred the matter to city attorney Glenn Sabine, who did not respond to a request to comment.

Encinitas must pass an ordinance by Sept. 12 laying out how it will implement the controversial law, according to the terms of a settlement agreement the city reached with the Building Industry Association two months ago.

Meyer states in the letter that the density bonus law is critical for grappling with California’s housing shortage. On the flip side, many residents have argued that density bonus projects come at the expense of community character and generate very little affordable housing.

A key part of the proposed ordinance states that the city will “round down,” not up, on fractional base density units, resulting in fewer homes in the density bonus developments. In a list of issues with the city’s ordinance, Meyer wrote that the state law specifies the city must round up.

The council last summer adopted the rounding-down method, as well as a requirement that affordable homes in density bonus developments must be at least 75 percent of the size of their market rate counterparts, and other measures meant to shrink the projects. The settlement with the Building Industry Association stipulates that the city will rescind these actions, with the exception of the rounding-down method.

Instead of the 75 percent requirement, the ordinance says that affordable units in the developments must be “of decent quality and comparable” to market rate units. Meyer wrote the law “makes no such provision,” adding the city’s intent is to “overburden the project with unnecessary expense.”

“Encinitas will likely be sued and no doubt Encinitas will again suffer an embarrassing loss,” states the letter.