Encinitas hit by another ‘density bonus’ lawsuit

Encinitas has been slapped with a lawsuit over its “density bonus” building rules, months after settling a case over the controversial matter.

As required under a previous lawsuit settlement, the Encinitas City Council in November passed a new density bonus ordinance that backed off on prior regulations. But David Meyer of Encinitas-based DCM Properties sued the city last week, maintaining its ordinance is still too restrictive and violates state law.

California’s density bonus law lets developers bypass local zoning and build more housing than typically allowed, as long as at least one home is reserved for low-income individuals.

Meyer’s lawsuit notably seeks to force the city to “round up” fractional units when calculating how many homes are allowed on a parcel, an approach that results in at least one additional market rate house in a density bonus project when compared to the round-down method.

“The language in the state law is extremely clear, beyond clear as far as I’m concerned,” Meyer said when reached over the phone this week.

The council in 2014 tightened the rules on density bonus projects, which included the requirement that affordable units in the developments must be at least 75 percent of the size of their market rate counterparts. In response, the Building Industry Association of San Diego filed a lawsuit.

In a settlement with the association, the council agreed to undo most of the 2014 changes, but it retained the ability to round down on future projects. That agreement also spelled out that the city had to round up on six density bonus developments in the works, netting a total of 68 units, which would have been 63 units if rounding 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, since other cities follow that method. At that time, Meyer threatened legal action.

Neither Kautz nor City Attorney Glenn Sabine responded to a request to comment on this article.

Meyer said some cities choose to round down on fractional units, yet when state law is invoked, a city has no choice but to round up.

His lawsuit, filed Jan. 25 in a San Diego Superior Court, also demands that the city:

• End its policy of requiring that developers complete reports justifying waivers and incentives that make it easier for developers to build density bonus projects

• Prioritize passing a housing element, which requires Encinitas to rezone select parcels for higher density to accommodate 1,300 units.

• Pay attorneys’ fees in the case

Critics of density bonus developments have made the case that they stuff too many homes onto parcels at the expense of neighborhood character, while generating very little affordable housing. Meyer said although people may not like the percentage of market rate versus affordable housing, the law has produced nearly all of the city’s affordable homes over the last decade.

“The minor impositions that density bonus actually has on communities is well worth the trade-off of providing families with affordable housing,” Meyer said.