Encinitas hits restart button with new ‘density bonus’ ordinance

Encinitas wants to pass a new “density bonus” housing ordinance, after recently settling a lawsuit over the controversial development issue.

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

The Building Industry Association last fall sued the city in response to the Encinitas City Council tightening the rules for density bonus projects. But a settlement reached last month forced the city to rescind most of those regulations, including the requirement that affordable homes in density bonus developments be at least 75 percent of the size of their market rate counterparts.

The agreement also directed city staff to craft a revised density bonus ordinance, which went before the Planning Commission Aug. 6 and will later go to the council for consideration.

The Planning Commission voted unanimously to endorse the ordinance, leaving it largely intact, including a key clause over “rounding down” a density bonus calculation.

The ordinance states the city will round down, not up, on fractional base density units, resulting in fewer homes in the developments. Planning Commissioner Glenn O’Grady said the rounding matter should be left to the council, considering its earlier stance.

Although the council had to reverse rules on density bonus projects under the settlement, it retained the ability to round down. The council agreed that the new ordinance should include this calculation method.

“The council has spoken, if you will, for now on that issue,” O’Grady said.

However, during the public hearing, several people representing development interests took issue with rounding down and other ordinance provisions.

David Meyer of DCM Properties said the ordinance runs contrary to the state law and will land the city in court again.

“This ordinance’s intent is clear: to obstruct and discourage the use of density bonus in Encinitas,” Meyer said. Earlier, he stated density bonus law is designed to encourage affordable housing, and Encinitas is the “poster child” for why the law exists.

Resident Gerald Sodomka countered that the reality of density bonus doesn’t match the law’s intent. He said a density bonus developer pledges one or two affordable units, and the extra homes granted are sold at market rate.

“We’re not getting a lot of affordable units under this law,” Sodomka said.

Others argued that density bonus projects stuff too many homes onto parcels, hurting neighborhood character.

When compared with the rounding-down method, the rounding-up formula typically results in at least one additional market rate home in a density bonus project.

For example, take a lot with 1.4 acres of developable land that’s zoned for a maximum of eight dwellings per acre. City zoning would allow 11 units, but if a density bonus developer reserves one home as affordable, the rounding-up formula would net 16 total units, versus 15 with the rounding-down formula, according to Planning Director Jeff Murphy.

Another major part of the ordinance states that affordable homes in density bonus developments must be “of decent quality and comparable” to their market rate counterparts.

This relaxes the council’s prior rule, which stated that affordable homes are required to be at least 75 percent of the size of market rate density bonus dwellings. Legal counsel advised the city that it’s illegal to demand specific size requirements for affordable units, but it’s legally OK to say they must be comparable to market rate homes.

The Planning Commission’s vote was 4-0. Commissioner Tony Brandenburg was absent from the meeting.